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A  STUDEiNTS'  TEXT 


ON 


THE  LAW  OF  PRINCIPAL 
AND  AGENT 


SHERMAN   STEELE 

Lecturer  on  Agency  in  St.  Louis  Universitjr 
School  of  Law 


CHICAGO 

T.  H.  FLOOD  AND  COMPANY 
1909 


/ 


Copyright,  1909 

BY 

T.  H.  FLOOD  AND  COMPANY. 


KTATK  JOURNAL  I'RINTINU  COMPANY. 

PKINTrRH   AND  STlCIltOTYPtlia, 
MAOIHUN,  WIS. 


-i^ 


TO 

OF 

ifampB  31.  Olottmaa 


PREFACE. 


This  book  has  been  written  with  a  view  to  its  use  as  a 
class  room  text;  and  is  addressed,  therefore,  primarily,  to 
students. 

Though  no  attempt  has  been  made  to  reduce  a  treatment 
of  the  law  of  Agency  to  the  simplicity  of  a  primer,  yet  it  is 
believed  that  the  rules  have  been  stated,  and  the  principles 
discussed,  with  sufficient  clearness  and  conciseness  to  bring 
them  within  grasp  of  the  ordinarily  intelligent  student  of 
law. 

Sherman  Steele. 
St.  Louis,  September  1.  1909. 


TABLE  OF  CONTENTS 


PART  I 
THE  RELATION  IN  GENERAL 


CHAPTER  L 

DEFINITIONS. 

»  1.  Agency, 

2.  Form  of  contract. 

3.  Created  by  law. 

4.  Master  and  servant, 

5.  Classifications. 

6.  Universal,  general  and  special  agents. 
7:  Del  credere  agent. 

8.  Particular  designations. 

9.  Partners. 

10.  Other  forms  of  agency. 

11,  Legal  recognition. 

CHAPTER  II. 

CAPACITY  OF  PARTIES. 

{  12.  Who  may  be  principal. 

13.  Joint  principals. 

14.  Partners. 

15.  Voluntary  associations,  clubs,  societies. 

16.  Who  may  not  be  principal. 

17.  Insane  persons. 

18.  Drunken  persons. 

19.  Aliens. 

20.  Married  women. 


VI  TABLE  OF  CONTENTS. 

9  21.  Infants. 

22.  Who  may  be  agents. 

23.  Infants,  insane  persons,  married  womeiu 

24.  Corporations  and  partnerships. 

25.  Persons  adversely  interested. 

26.  Unlicensed  agents. 

27.  Joint  agents. 

28.  Public  agency. 

CHAPTER  III. 
DELEGATION  OF  AUTHORITY— ILLEGALITY  OF  OBJECT. 

I.  Delegation  of  authority. 

§  29.  In  general. 

30.  Personal  acts. 

31.  Acts  required  by  statute  to  be  personally  performed. 

32.  Delegated  authority  can  not  be  delegated. 

33.  Appointment  of  subagents. 

34.  Implied  authority  to  appoint  subagents. 

35.  Ministerial  acts. 

36.  Implication  of  authority  from  nature  of  agency 

37.  The  relation  of  the  parties. 

II.  Illegality  of  ohject. 

§  38.  In  general. 

39.  Appointment  to  do  illegal  acts. 

40.  Services  in  influencing  legislation. 

41.  Procuring  other  governmental  action. 

42.  Other  contracts  for  services  affecting  the  puhliQ, 

43.  Services  contrary  to  fair  dealings. 

44.  Conditions  necessary  to  invalidate  contract. 

CHAPTER  IV. 

APPOINTMENT  OF  AGENTS. 

8  45.  In  general. 
40.  Authority  to  execute  sealed  instruments. 
47.  Authority  to  fill  blanks 


TABLE  OF  CONTENTS.  VU 

48.  Authority  to  execute  simple  contracts  required  to  be  in 

writing. 

49.  Oral  appointment 
60.  Implied  appointment. 

(a)  In  general. 

(b)  Implication   from   circumstances. 

(c)  Implication  from  acts  or  conduct, 

(d)  Relation  of  parties, 

51.  Estoppel. 

52.  Acceptance  by  agent. 


CHAPTER  V, 

RATIFICATION. 

53.  In  general. 

B4.  What  acts  or  contracts  may  be  ratified, 

(a)  In  general. 

(b)  Contracts. 

(c)  Torts. 

(d)  Forgery. 

B5.  Conditions  to  ratiiication. 

(a)  Assumption  of  agency. 

(b)  Existence  and  designation  of  principal. 

56.  Who  may  ratify. 

57.  Manner  of  ratification. 

(a)  In  general. 

(b)  Ratification   of   sealed   instruments   and   of  Con- 

tracts required  to  he  in  writing.. 

(c)  Express  oral  ratification. 

58.  Implied  ratification. 

(a)  By  affirmative  act. 

(b)  By  silence. 

59.  Estoppel. 

60.  Knowledge  of  material  facts. 

61.  Ratification  in  part. 

62.  Effect  of  ratification. 

(a)  In  general. 

(b)  Intervening  rights  of  strangers. 


Viii  TABLE  OF  CONTENTS. 

I  63.  Effect  between  principal  and  third  party 

(a)  In  general. 

(b)  Acts. 

(c)  Contracts. 
64.  Effect  on  agent. 


CHAPTER  VI. 

TERMINATION  OF  AGENCY. 

65.  In  general. 

66.  By  original  agreement, 

67.  By  act  of  parties. 

68.  Revocation  of  authority. 

(a)  In  general. 

(b)  Power  distinguished  from  right  to  revokai 

69.  How  revocation  is  effected. 

(a)  As  against  agent. 

(b)  As  against  third  parties. 

70.  Irrevocable  powers. 

71.  Renunciation  by  agent. 

72.  Termination  by  law. 

73.  Death. 

(a)  Of  principal. 

(b)  Of  agent. 

(c)  Power  coupled  with  Interest. 

(d)  Hunt  V.  Rousmanler. 

74.  Insanity. 

(a)  Of  principal. 

(b)  Of  agent. 

75.  Bankruptcy. 

(a)  Of  principal. 

(b)  Of  agent 

76.  Marriage. 

77.  War. 


TABLE  OF  CONTENTS.  IX 

PART  II 
EXISTENCE  AND  EXTENT  OF  AUTHORITY 


CHAPTER  VII. 

ESTABLISHMENT  OP  AUTHORITY. 

5  78.  In  general. 

79.  Establishment  of  authority 

(a)  Agent's  declarations. 

(b)  Communications  between  principal  and  agent. 

(c)  Oral  or  implied  authority. 

(d)  Ratification  and  estoppel. 

(e)  Province  of  court  and  jury. 

80.  Written  authority. 

81.  Ambiguous  authority. 

82.  For  principal's  benefit. 

83.  Slight  deviation. 

84.  Severable  transaction. 

85.  Public  officers 

CHAPTER  Vin. 

CONSTRUCTION  OF  AUTHORITY. 

I  86.  In  general. 

87.  Express  authority. 

(a)  "Written  authority. 

(b)  Oral  authority. 

88.  Implied  authority. 

89.  Implication  as  to  extent  of  authority, 

(a)  Medium  powers. 

(b)  Power  implied  from  usage. 

90.  Contrary  restrictions. 

91.  Apparent  authority. 


TABLE  OF  CONTENTS. 

§  92.  General  and  special  agents. 

93.  Notice  of  limitations. 

94.  Sximmary. 

CHAPTER  IX. 
SCOPE  OF  PARTICULAR  AGENCIES. 

S  95.  In  general. 

96.  Agent  to  sell. 

(a)  Personalty. 

(b)  Realty. 

97.  Agent  to  purchase. 

98.  Agent  to  receive  payment. 

99.  Agent  to  execute  commercial  paper. 

100.  Agent  to  manage  business. 

101.  Bank  cashier. 

102.  Factor. 

103.  Broker. 

104.  Auctioneer. 

105.  Attorney-at-law. 


PART  III 


RIGHTS  AND  LIABILITIES   BETWEEN  PRIN-J 
CIPAL  AND  THIRD  PERSONS. 


CHAPTER  X. 

FORM  OF  EXECUTION  NECESSARY  TO  BIND  PRINCIPAI* 

I  lOG.  In  general. 

107.  Sealed  instruments. 

108.  Negotiable  instruments. 

(a)  In  general. 

(b)  Parol  evidence  rule. 

(c)  Cashier. 


TABLE  OF  CONTENTS.  XI 


§  109.  Other  contracts. 

(a)  Undisclosed  agency, 

(b)  Election  to  hold  principal. 

(c)  Settlement  with  agent. 
110.  Agent's  liability. 


CHAPTER  XI. 

ADMISSIONS— NOTICE— LIABILITY     OP     PRINCIPAL     FOR 
TORTS  AND  CRIMES  OF  AGENT. 

§  111.  Scope  of  chapter. 

L  Admissions. 

112.  In  general. 

113.  Admissions  by  agent. 

(a)  In  general. 

(b)  Authorized  statements. 

(c)  Statements  part  of  transaction, 

114.  Res  gestae. 


IL 

Notice. 

115. 

In  general. 

116. 

Notice  to  agent, 
(a)   In  general. 

(b)  Exceptions  to  rule. 

III.  PrincipaVs  liability  for  tort  of  agent. 

117.  In  general. 

118.  Master  and  servant. 

119.  Principal  and  agent. 

120.  Fraud. 

(a)  In  general. 

(b)  Not  for  principal's  benefit. 

IV.  Principal's  liaMlity  for  agent's  crimes, 

121.  In  general. 

122.  Assent  of  principal. 

(a)  In  general. 

(b)  Statutory  offenses. 


Xll  TABLE  OF  CONTENTS. 

CHAPTER  XII. 

LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL. 

§  123.  In  general. 

124.  Sealed  and  negotiable  instruments. 

125.  Other  contracts. 

(a)  Liability  to  undisclosed  principal. 

(b)  Principal  excluded. 

126.  Defenses. 

(a)  In  general. 

(b)  Estoppel. 

127.  Money  paid  through  mistake, 

128.  Property  wrongfully  transferred. 

(a)  In  general. 

(b)  Indicia  of  ownership. 

(c)  Money  and  negotiable  instruments. 

129.  Following  trust  funds. 

130.  Fraud. 

(a)  In  general. 

(b)  Collusion  with  agent. 

131.  Causing  loss  of  service. 


PART  IV 


RIGHTS  AND   LIABILITIES  BETWEEN  AGENT 
AND  THIRD   PARTY 


CHAPTER  xm. 

LIABILITY  OF  AGIONT  TO  THIRD   PERSON— LIABILITY  OF 
THIRD   PERSON  TO  AGENT. 

I.  Liability  of  ayent  to  third  person, 

9  132  In  Ronnrnl. 

133.  Siniiilf  contracts. 
(a)    In  general, 
fb)   Construction. 
184.  Sealed  Instruments. 


TABLE  OF  CONTENTS.  xiii 


§  135.  Negotiable  instruments. 

136.  Public  officers. 

137.  Acting  without  authority. 

(a)  In  general. 

(b)  Deceit. 

(c)  Breach  of  warranty. 

(d)  Damages. 

138.  Liability  for  money  received. 

(a)  In   good  faith. 

(b)  Wrongfully. 

139.  Money  received  from  principal. 

140.  Liability  for  torts. 

(a)  In  general. 

(b)  Nonfeasance. 

II.  Liahility  of  third  person  to  agent. 

141.  On  contract. 

(a)  In  general. 

(b)  Interest  in  subject  matter. 

(c)  Measure  of  damages. 

142.  Defenses. 

143.  Professed  agent  real  principal. 

144.  Liability  for  money. 

145.  Liability  for  torts. 


PART  V 


RIGHTS  AND   LIBILITIES   BETWEEN   PRIN- 
CIPAL AND  AGENT. 


CHAPTER  XIV. 

OBLIGATION  OF  AGENT  TO  PRINCIPAI4. 

146.  In  general. 

147.  Duty  to  obey  instructions. 

(a)  Express  instructions. 

(b)  Implied  instructions. 


Xiv  TABLE  OP  CONTENTS. 

§  148.  Justification  for  disobedience. 

(a)  Emergency. 

(b)  Illegal  act. 

(c)  Ambiguous   instructions. 

(d)  Factor's  rights. 

149.  Duty  to  exercise  care  and  diligence. 

(a)  In  general. 

(b)  Gratuitous  agent. 

150.  Duty  to  act  in  good  faith. 

(a)  In  general. 

(b)  Acting  as  agent  and  party. 

(c)  Acquiring  adverse  interest. 

(d)  May  not  deny  title. 

(e)  May  not  make  a  profit. 

(f)  Failure  to  give  notice. 

151.  Duty  to  account. 

(a)  In  general. 

(b)  Duty  to  pay  over. 

(c)  Demand. 

152.  Subagents. 

CHAPTER  XV. 
OBLIGATIONS  OF  PRINCIPAL  TO  AGENT. 

§  153.  In  general. 

154.  Compensation. 

(a)  In  general. 

(b)  Ratification. 

(c)  Amount  of  compensation. 

155.  When  compensation  is  due. 

156.  Revocation  of  authority. 

(a)  In  general. 

(b)  Revocation  in  violation  of  contract. 

(c)  Agent's  misconduct. 

(d)  Revocation  by  law, 
157-  Renunciation  by  agent. 

(a)  In  general. 

(b)  Entire  and  severable  contracts. 


TABLE  OF  CONTENTS.  XV 


158.  Obligation  to  reimburse. 

159.  Obligation  to  indemnify. 

(a)  In  general. 

(b)  Illegal  acts. 

160.  Lien  of  agent. 

161.  Special  lien. 

(a)  In  general. 

(b)  Requisites  of  lien. 

(c)  Enforcement  of  lien. 

162.  Stoppage  in  transitu. 


THE  LAAV  OF  AGENCY. 


PART  T 

THE  RELATIOI^  IIST  GEI^EEAL. 


CHAPTER  L 

DEFINITIONS. 

§  1.  Agency. 

2.  Form  of  contract. 

3.  Created  by  law. 

4.  Master  and  servant. 

5.  Classifications. 

6.  Universal,  general  and  special  agents. 

7.  Del  credere  agent. 

8.  Particular  designations. 

9.  Partners. 

10.  Other  forms  of  agency. 

11.  Legal  recognition. 

§  1.  Agency.  Agency  is  a  legal  relation,  created  by 
contract,  whereby  one  party,  called  the  agent,  is  author- 
ized to  represent  the  other  party,  called  the  principal,  in 
business  dealings  with  third  persons,  and  is  usually  empow- 
ered to  bring  the  principal  into  contractual  relations  with 
such  persons.^ 

1  Sternaman  v.  Metropolitan  Life  Ins.  Co.,  170  N.  Y.  13,  62  N. 
E.  763.     Agency  is  the  relation,  created  either  by  express  or  im- 
plied contract,  or  by  law,  whereby  one  party  sui  juris,  called  the 
1 


2  THE  LAW   OP   AGENCY. 

§  2.  Form  of  contract.     The  contract  upon  which  the 

relation  of  principal  and  agent  is  founded  may,  with  a  few 

exceptions,^  be  either  verbal  or  written ;  ^  and,  as  in  the 

case  of  other  contracts,  it  may  also  be  implied  from  acts 

of  the  parties.*     And  so,  a  person 's  conduct  may  have  been 

such  as  to  estoD  him  from  denying  the  existence  of  the 

contract.^ 

principal,  constituent,  or  employer,  delegates  the  transaction 
of  some  lawful  business  with  more  or  less  discretionary  power  to 
another  party,  called  the  agent,  attorney,  proxy,  or  delegate,  who 
undertakes  to  manage  the  affairs  and  render  to  him  an  account 
thereof.  State  v.  Hubbard,  58  Kan.  797,  51  Pac.  290.  The  agent  is 
the  representative  of  the  principal  in  the  transaction  of  business 
embraced  within  his  agency.  Whatever  he  does  lawfully  in  a 
transaction  of  that  business  is  the  act  of  the  principal.  First  Nat. 
Bank  v.  Linn  County  Nat.  Bank,  30  Ore.  296,  47  Pac.  614.  An 
agent  is  a  person  duly  authorized  to  act  on  behalf  of  another  or 
whose  unauthorized  act  has  been  duly  ratified.  Flesh  v.  Lindsay, 
115  Mo.  1,  21  S.  W.  907. 

2  Post  §  46.  Authority  to  execute  a  sealed  instrument  must 
be  given  under  seal;  and  so,  it  is  provided  by  statute  in  some  oi 
the  states  that  authority  to  execute  particular  contracts,  such  a.' 
a  contract  for  the  sale  or  lease  of  land,  must  be  in  writing.  Ban 
orgee  v.  Hovey,  5  Mass.  11;  Shuetze  v.  Barley,  40  Mo.  69;  Albert- 
son  V.  Ashton,  102  111.  50. 

3 Post  §  49.  Webb  v.  Browning,  14  Mo.  354;  Riley  v.  Minor,  29 
Mo.  439;  Watson  v.  Sherman,  84  111.  263;  Long  v.  Hartwell,  34  N. 
J.  Law,  116. 

♦Post  §  50.  Graff  v.  Callahan,  158  Pa.  St.  380,  27  Atl.  1000: 
Sheanon  v.  Pacific  Mut.  Life  Ins.  Co.,  83  Wis.  507,  53  N.  W.  878. 

5  To  create  an  estoppel  the  conduct  of  the  party  need  not  eon 
sist  of  affirmative  acts  or  words,  but  may  consist  of  silence  or 
noKatlve  omission  to  act  when  it  was  his  duty  to  speak.  Diamond 
V.  Manheim,  61  Minn.  178,  63  N.  W.  495.  Hence  if  a  person  pur- 
posely or  negligently  permits  another  to  hold  himself  out  as  his 
agent,  he  will  not  be  heard  to  deny  the  existence  of  the  agency 
FoKs-Rchnfldnr  Brewing  Co.  v.  McLaughlin,  5  Ind.  App.  415,  31  N. 
E.  838;  Gibson  v.  Snow  Hardware  Co.,  94  Ala.  346,  10  South.  304; 
Cupjjles  V.  Whflan,  61  Mo.  583. 


DEFINITIONS.  3 

§  3.  Created  by  law.  In  most  of  the  definitions  it  is 
laid  down  that  the  relation  of  principal  and  agent  is  either 
founded  on  contract  or  "created  by  law."  The  anomaly 
of  an  "agency  created  by  law"  is  conjured  up  to  explain 
the  liability  of  a  husband  or  father  for  necessaries  fur- 
nished his  wife  or  child,  where  he  himself  has  refused  to 
provide  them.®  The  liability  in  question,  clearly,  does  not 
depend  upon  the  existence  of  a  relation  of  principal  and 
agent  between  the  parties ;  ^  but  is  rather  an  obligation  di- 
rectly imposed  by  law  out  of  motives  of  public  policy. 
Without  discussing  the  wisdom  of  this  practice  of  attach- 
ing legal  rules  to  divisions  of  law  where  accurately  they  do 
not  belong,  it  may  be  stated  that  in  this  treatment  of  the 
subject  we  are  not  concerned  with  ' '  agency  created  by  law, ' ' 
but  are  to  deal  with  a  relation  founded  on  agreement  of 
the  parties. 

§  4.  Master  and  servant.  The  relation  of  master  and 
servant  is  somewhat  analogous  to  that  of  principal  and 
agent.  Different  tests  have  been  applied  to  distinguish 
them,  such  as  the  term  of  employment,  the  mode  of  com- 
pensation, the  manner  of  rendering  service  and  the  like.^ 

6  In  those  cases  where  the  law  authorizes  a  wife  to  pledge  her 
husband's  credit  even  against  his  will,  it  creates  a  compulsory 
agency.    Benjamin  v.  Dockham,  134  Mass.  418. 

7  Thus,  the  husband  is  liable  though  the  goods  were  furnished 
against  his  positive  orders.  He  is  liable,  however,  only  for  what 
the  law  deems  necessaries  and  only  for  a  price  that  the  law  deems 
reasonable.  In  no  sense  would  he  be  bound  by  virtue  of  his  wife's 
agreement,  as  he  would  he  were  she  his  agent.  The  liability 
arises  in  the  absence  of  any  agreement  by  the  wife  and  hence 
does  not  depend  upon  existence  of  a  relation  of  principal  and 
agent  between  husband  and  wife. 

8  Lang  V.  Simmons,  64  Wis.  525,  25  N.  W.  650;  Frank  v.  Herold, 
«3  N.  J.  Eq.  443,  52  Atl.  152;   Gravatt  v.  State,  25  Ohio  St.  182; 


4  THE  LAW   OF   AGENCY. 

Practically,  the  agent  is  distinguished  from  the  servant  by 
the  purpose  of  his  employment.®  An  agent  acts  for  his 
principal  in  business  dealings  with  third  persons  and 
brings  the  principal  into  legal  relations  with  such  persons.^*^ 
A  servant  is  employed  to  perform  acts  upon  or  about  things, 
and  in  his  capacity  of  servant  does  not  represent  his  master 
in  business  dealings  with  others,  nor  has  he  power  to  bind 
his  master  by  contract.  If  authorized  to  do  so,  he  that  far 
ceases  to  be  a  servant  and  assumes  the  status  of  agent.^^ 
The  term  agent  is  sometimes  used  in  statutes  in  a  broader 
sense  than  here  defined,  so  as  to  include  any  employee ; — 
as  where  a  person  is  forbidden  to  do  an  act  pereonally  or 
by  agent.  The  sense  in  which  the  tenn  is  used  in  enact- 
ments of  this  character  must  be  determined  from  a  con- 
struction of  the  statute.^* 

§  5.  Classification.  Different  classifications  of  agents 
have  been  suggested,  determined  usually  by  the  nature  of 
their  authority  or  the  extent  of  their  obligation.  The 
most  frequent  classification  is  that  of  universal,  general  and 
special  agents;  and  del  credere  and  non  del  credere  agents. 

State  V.  Sarlis,  135  Ind.  195,  34  N.  E.  1129.  An  agent  has  more  or 
less  discretion,  while  a  servant  acts  under  the  master's  control 
and  direction;  McCroskey  v.  Hamilton,  108  Ga.  640,  34  S.  E.  111. 

0  Turner  v.  Cross,  83  Tex.  218,  18  S.  W.  578. 

'0  Wilson  V.  Mene-chas,  40  Kan.  648,  20  Pac.  468;  Gardner  v. 
Boston  &  M.  R.  Co.,  70  Me.  181. 

uKlngan  &  Co.  v.  Silvers,  13  Ind.  App.  SO,  37  N.  E.  413.  No 
r)nw('r  can  be  inferred  from  a  relation  of  master  and  servant  by 
which  the  latter  can  bind  the  former.  Moore  v.  Tickle,  14  N.  C. 
244. 

isHlnderer  v.  Slate,  38  Ala.  415;  Mitchell  v.  Georgia  &  A.  R.v. 
Ill  Ga.  700,  30  S.  E.  971;  Territory  v.  Maxwell,  2  N.  M.  250;  1 
Wharton  Trim.   Lnw,  §  1022. 


DEFINITIONS.  5 

§  6.  Universal,  general  and  special  agents. 

(a)  Universal.  A  universal  agent  would,  necessarily, 
be  one  authorized  to  act  for  his  principal  in  all  possible  busi- 
ness dealings  with  third  persons,  and  empowered  to  bind  his 
principal,  without  limit,  by  contract.  A  universal  agency, 
like  a  mathematical  point,  has  only  theoretical  existence. 
It  is  difficult  to  see  how  the  creation  of  an  actual  universal 
agency  would  be  legally  possible;  for  no  matter  how  broad 
the  grant  of  authority,  conditions  might  arise  which  were 
not  in  contemplation  by  the  principal  when  he  created  the 
agency.^' 

(b)  General.  A  general  agent  is  one  authorized  to  rep- 
resent his  principal  generally  in  a  particular  line  of  busi- 
ness, such  as  the  manager  of  a  store,  or  an  agent  author- 
ized generally  to  buy  or  sell  goods  for  his  principal.^*  A 
person  may  have  any  number  of  general  agents,  and  may 
combine  a  number  of  general  agencies  in  a  single  agent.^' 

13  A  universal  agency  may  potentially  exist  but  it  must  be  of 
the  rarest  occurrence,  and  indeed  "it  is  difficult,"  says  Mr.  Justice 
Story,  "to  conceive  of  the  existence  of  such  an  agency,  inasmuch 
as  it  would  be  to  make  an  agent  the  complete  master,  not  merely 
dux  facti,  but  dominus  rerum,  the  complete  disposer  of  all  the 
rights  and  property  of  the  principal."  Wood  v.  McCain,  7  Ala. 
&00;   Baldwin  v.  Tucker,  112  Ky.  282,  65  S.  W.  841. 

i*Lobdell  V.  Baker,  1  Mete.  (Mass.)  193;  De  Turck  v.  Matz.  ISO 
Pa.  St.  347,  36  Atl.  861;  Fishbaugh  v.  Spunaugle,  118  Iowa,  337, 
92  N.  W.  58.  A  general  agency  exists  when  there  is  a  delegation 
to  do  all  acts  connected  with  a  particular  business  or  employment. 
Great  "Western  Mining  Co.  v.  Woodmas,  12  Colo.  46.  20  Pac.  771. 
A  general  agent  of  an  insurance  company  is  one  who  is  authorized 
to  accept  risks  and  settle  terms  of  insurance,  and  to  carry  them 
into  effect  by  issuing  and  renewing-  policies.  Walsh  v.  Hartford 
Fire  Ins.  Co.,  9  Hun  (N.  Y.)  421. 

i»  A  general  authority  to  do  an  indefinite  number  of  acts  of  a 
particular  kind  by  no  means  constitutes  a  universal  agency.  Far- 
mers', etc..  Bank  v.  Butchers',  etc.,  Bank,  16  N.  Y.  125. 


6  THE  LAW   OF   AGENCY. 

(c)  Special.  A  special  or  particular  agent  is  one  au- 
thorized to  act  for  his  principal  in  a  single  or  particular 
transaction,  such  as  in  the  sale  of  a  horse  or  a  parcel  of 
land.^« 

§  7.  Del  credere  ag^ent.  A  del  credere  agent  is  one  who, 
in  consideration  of  increased  compensation,  guarantees  the 
payment  of  any  debt  arising  through  his  agency.  The  term 
is  most  generally  used  in  reference  to  commission  mer- 
chants who  guarantee  payment  for  the  goods  they  sell  on 
commission.  A  non  del  credere  agent  is,  of  course,  one  who 
makes  no  such  guarantee.*' 

§  8.  Particular  designations.  There  are  a  number  of 
agents,  whose  duties  are  of  a  specific  nature,  to  whom  com- 
monly recognized  designations  are  given,  such  as  attorneys 
in  fact  and  at  law,  brokers,  factors,  auctioneers  and  the  like. 

(a)  Attorneys.  An  agent  authorized  in  writing  to  sign 
a  deed,  or  other  formal  document,  is  frequently  called  an 
attorney  in.  fact,  and  his  written  authority  is  termed  <'i 
power  of  attorney.  An  attorney  in  fact  is,  of  course,  to  bo 
distinguished  from  an  aflorncy  at  law,  who,  as  such,  merely 
represents  his  client  in  leffal  matters  intrusted  to  his 
charge.^' 

ifl  First  Nat.  Bank  v.  Nelson,  38  Ga.  391;  Scott  v.  McGrath,  7 
Barb.  53;  Cooley  v.  Perrine,  41  N.  J.  Law,  322;  Davis  v.  Talbot, 
137  Ind.  235,  36  N.  E.  1098.  A  special  agent  is  one  authorized  to 
do  one  or  more  specific  acts,  in  pursuance  of  particular  instruc- 
tions, or  within  restrictions  necessarily  implied  from  the  act  to 
l)e  done.     Pacific  Biscuit  Co.  v.  DiiRRer,  40  Ore.  362,  67  Pac.  32. 

17  Loch  V.  Hellman,  83  N.  Y.  601;  Ruffner  v.  Hewit,  7  W.  Va. 
.185.  A  del  (Todere  ap;rnt  is  primarily  liable  to  his  principal  for 
the  price  of  the  goods  sold.    Lewis  v.  Brehme,  33  Md.  412. 

18  Attorney,  In  English  law,  signifies,  in  its  widest  sense,  any 
substitute  or  agent  ai)pointed  to  act  in  the  turn,  stead  or  place  of 


DEFINITIONS.  7 

(b)  Brokers.  A  broker  is  an  agent  who  brings  parties 
together  to  bargain,  or  who  negotiates  for  them  business 
transactions,  usually  the  purchase  or  sale  of  property  not 
in  his  possession."  He  is  employed  "to  make  bargains  and 
contracts  between  other  persons  in  matters  of  trade,  com- 
merce and  navigation  for  a  compensation  commonly  called 
brokerage."^"  A  person  who  sells  real  estate,  stocks  or 
bonds  on  commission  is  a  broker. 

(c)  Factors.  The  term  factor  is  the  legal  equivalent 
of  the  business  term  commission  merchant. ^^  A  factor  dif- 
fers from  a  broker  in  that  he  has  possession  of  the  goods  to 
be  sold  and  usually  sells  them  in  his  own  name,^^  frequently 
guaranteeing  payment;  in  which  event  he  is  said  to  sell 
upon  del  credere  commission. 

(d)  Auctioneer.  An  auctioneer  is  an  agent  who  sells 
property  of  his  principal  at  public  sale  or  auction.  He  dif- 
fers from  a  broker  in  that  his  sales  are  public.     Though 

another.  In  re  Ricker,  66  N.  H.  207,  29  Atl.  559.  An  attorney-at- 
law  is  merely  an  agent  of  a  party,  and  special  agent  at  that,  in 
the  sense  that  his  authority  extends  only  to  the  particular  matter 
in  which  he  is  employed.  Douglass  v.  Folsom,  21  Nev.  441,  33  Pac. 
660. 

isHiggins  v.  Moore,  34  N.  Y.  417;  Parker  v.  Walker,  86  Tenn. 
566,  8  S.  W.  391;  Douthart  v.  Congdon,  197  111.  349,  64  N.  E.  348. 
A  broker  is  a  mere  negotiator  between  other  parties,  and  does  not 
act  in  his  own  name,  but  in  the  name  of  those  who  employ  him. 
Henderson  v.  State,  50  Ind.  234. 

20  Story  on  Agency,  §  22. 

21  Mechem's  Agency,  §  14;  Thompson  v.  Woodruff,  47  Tenn.  401; 
Duguid  V.  Edwards,  50  Barb.  (N.  Y.)  200. 

22  In  re  Rabenau,  118  Fed.  471;  State  v.  Thompson,  120  Mo.  12, 
25  S.  W.  346;  Delafield  v.  Smith,  101  Wis.  664,  78  N.  W.  170.  A 
factor  is  a  commercial  agent  transacting  the  mercantile  affairs 
of  other  men  in  consideration  of  a  fixed  salary  or  commission, 
and  principally,  though  not  exclusively,  in  the  buying  and  selling 
"•f  goods.    Lawrence  v.  Storington  Bank,  6  Conn.  521 


8  THE  LAW   OF   AGENCY. 

primarily  agent  of  the  seller,  an  auctioneer  becomes  also 
the  agent  of  the  buyer  when  he  accepts  the  latter 's  bid  and 
enters  his  name  upon  the  memorandum  of  sale.^^ 

§  9.  Partners.  The  formation  of  a  partnership  creates 
a  qualified  relation  of  agency  between  the  partners.  In 
the  absence  of  express  restrictions,  each  partner  is  deemed 
the  agent  of  all  in  the  transaction  of  such  affairs  as  come 
within  the  scope  of  the  partnership  business.^* 

§  10.  Other  forms  of  agency.  Certain  officers  of  ships, 
such  as  the  master ;  and  particular  officials  of  corporations, 
such  as  the  cashier  of  a  bank,  are  agents,  whose  functions 
are  more  or  less  familiar  and  whose  duties,  to  a  large  ex- 
tent, are  defined  by  custom,-^ 

§  11.  Legal  recognition.  The  law  gives  recognition  to 
all  the  foregoing  familiar  forms  of  agency;  and  while  it  is 
the  rule  that  no  presumptions  are  indulged  as  to  the  nature 
or  extent  of  an  agent's  authority,  but  that  the  same  must 
be  established  by  evidence ;  yet,  where  the  duties  of  a  par- 
ticular agent  are  well  defined  .By  custom,  it  will  be  assumed, 
in  the  absence  of  express  restrictions,  that  such  an  agent's 

23  White  V.  Dahlquist  Mfg.  Co.,  179  Mass.  427,  60  N.  E.  791; 
Thomas  v.  Kerr,  3  Bush.  (Ky.)  619;  Randall  v.  Lautenberger,  16 
R.  I.  159,  13  Atl.  100. 

2*  Person  v.  Carter,  7  N.  C.  321;  Summerlot  v.  Hamilton,  121 
Intl.  87,  22  N.  B.  973.  A  partner  may  buy  land  for  the  firm  if  it 
Is  needed  for  the  firm  business.  Davis  v.  Cook,  14  Nov.  2G5;  Win- 
ship  V.  Bank  of  U.  S.,  5  Pet.  (U.  S.)  529. 

25  Porter  v.  Herman,  8  Cal.  619;  Sturges  v.  Bank  of  Circleville, 
n  Ohio  St.  l.'")3;  Martin  v.  Webb,  110  U.  S.  7.  The  term  agent  is 
one  of  wide  application  and  includes  a  great  many  classes  of  per- 
sons to  which  (ii.stinctive  appellations  are  given,  as  factors,  brok- 
crH,  itloriioys,  «a.sliif.MS,  clcrk.s,  consignees,  etc.  Norfolk  &  W.  R. 
Co.  V.  Cottrcll,  83  Va.  512,  3  S.  E.  123. 


DEFINITIONS.  d 

authority,  in  any  particular  case,  extends  to  the  perform- 
ance of  those  functions  for  which,  according  to  the  usages 
of  business,  he  is  ordinarily  employed.^* 

26  Post,  Chap.  IX.  Gray  v.  Farmers  Nat.  Bank,  81  Md.  631,  32 
Atl.  518;  Abbot  v.  Jack,  136  Cal.  510,  69  Pac.  257.  A  cashier  of  a 
bank  is  held  out  to  the  public  as  having  authority  to  act  accord- 
ing to  the  general  usage,  practice  and  course  of  business  con- 
ducted by  such  institutions,  and  his  acts  done  in  the  scope  of 
such  usage,  practice  and  course  of  business  will,  in  general,  bind 
the  bank  in  favor  of  third  persons  possessing  no  other  knowledge. 
Such  an  officer  is.virtute  officii, intrusted  with  the  notes,  securities, 
and  other  evidence  of  the  bank,  and  is  held  out  to  the  world  by 
the  bank  as  its  general  agent  for  the  transaction  of  its  affairs, 
within  the  scope  of  authority  vested  by  such  usage,  practice,  and 
course  of  business.     Case  v.  Citizens'  Bank,  100  U.  S.  446. 


CHAPTER  IL 

CAPACITY  OF  PARTIEa 

§  12.  Who  may  be  principal, 

13.  Joint  principals. 

14.  Partners. 

15.  Voluntary  associations,  clubs,  societies, 

16.  Who  may  not  be  principal. 

17.  Insane  persons. 

18.  Drunken  persons. 

19.  Aliens. 

20.  Married  women. 

21.  Infants. 

22.  Who  may  be  agents. 

23.  Infants,  insane  persons,  married  "women. 

24.  Corporations  and  partnerships. 

25.  Persons  adversely  interested. 

26.  Unlicensed  agents. 

27.  Joint  agents. 

28.  Public  agency. 

§  12.  Who  may  be  principal.  The  relation  of  principal 
and  agent,  as  we  have  seen,  is  founded  on  contract,  and  an 
iigent  usually  brings  his  principal  into  contractual  relations 
with  others.  To  appoint  an  agent,  therefore,  or  to  act  by 
agent,  a  person  must  be  competent  to  contract.  Those  per- 
sons whom  the  law  declares  incapable  of  entering  into  con- 
tracts generally,  can  not  enter  into  the  contract  of  agency, 
or  contract  through  an  agent  with  third  parties.^  Stated 
conversely,  the  rule  is  that  any  one  legally  competent  to  con- 

1  Dexter  v.  Hall,  15  Wall.  (U.  S.)  9;  Armitage  v.  Widoe,  36 
Mich.  124.  As  to  compeleucy  in  general  see  Lawson  on  Contracts,. 
Chap.  V. 


CAPACITY   OF   PARTIES.  11 

tract  may  appoint  an  agent,  and,  with  a  few  exceptions,^ 
)nay  do  through  an  agent  any  act  which  he  is  capable  of 
doing  in  person,^  or  make  any  contract  into  which  he  is  com- 
petent personally  to  enter.*  Broadly  speaking,  any  person 
competent  to  act  in  his  own  behalf  may  act  by  agent;  and 
anything  which  a  person  mav  do  himself  he  may  do  by 
agent.* 

§  13.  Joint  principals.  Any  number  of  persons,  indi- 
vidually competent  to  contract,  may  unite  in  the  appoint- 
ment of  an  agent  to  represent  them  in  business  dealings  with 
others  or  to  bind  them  by  contract  with  third  parties.*' 
Where  several  persons  have  common  interests,  such  as  joint 
ownership  of  property,  it  may  frequently  occur  that  they 
will  join  in  the  appointment  of  one  of.  their  own  number, 
or  of  a  stranger,  as  agent ;  or  they  may  authorize  one  of 
their  oaati  number  to  make  the  appointment  in  behalf  of  all. 
In  either  event  the  acts  of  the  agent,  within  the  scope  of  his 

2  Acts  essentially  of  a  personal  nature  and  powers  conferred  be- 
cause of  personal  qualification  can  not  be  delegated;  and,  so, 
where  a  statutory  duty  or  authority  is  required  to  be  personally 
executed,  it,  of  course,  can  not  be  delegated.  Lyon  v.  Jerome,  26 
Wend.  (N.  Y.)  485,  37  Am.  Dec.  271;  Brown  v.  Railway  Passenger 
Assur.  Co.,  4.5  Mo.  221;  Finnegan  v.  Lucy,  157  Mass.  439,  32  N.  B. 
656;  Post,  Chap.  IIL 

3  Broom's  Legal  Maxims:  Qui  facit  per  alium  facit  per  se. 
Combes'  Case,  9  Co.  Rep.  75.  An  agent  may  be  authorized  to  do 
any  acts  Which  his  principal  might  do,  except  those  to  which  the 
latter  is  bound  to  give  personal  attention.     Cal.  Code,  §  2304. 

*  Lea  V.  Bringier,  19  La.  Ann.  197.  Capacity  to  contract  through 
an  agent,  is  coextensive  with  the  capacity  of  the  principal  to  con- 
tract. 

6  Ferguson  v.  Morris,  67  Ala.  389. 

eHolladay  v.  Daily,  19  WalL  (U.  S.)  606;  Reiman  v.  Hamilton, 
111  Mass.  245. 


ik  W- 


12  THE  LAW   OF   AGENCY. 

authority,  become  the  acts  of  all  the  principals^  The  fact, 
however,  of  the  existence  m  several  persons  of  a  common 
interest  does  not  implj'-  authority  in  one  to  represent  the 
others,  nor  to  appoint  an  agent  in  behalf  of  all.®  The  assent 
of  all  the  principals  is  required.  Thus,  the  appointment  of 
an  agent  by  one  of  several  joint  tenants  will  in  no  way  bind 
the  others  unless  they  give  their  a,ssent  either  at  the  time  or 
subsequently  by  ratification.'^ 

§  14,  Partnership.  The  formation  of  a  partnership,  as 
we  have  seen,  creates  a  relation  of  agency  between  the  part- 
ners, whereby  each  becomes  the  agent  of  all  in  the  transac- 
tion of  partnership  business.^"  In  the  absence  of  express 
restriction,  therefore,  the  existence  of  a  partnership  im- 
plies authority  in  each  member  of  the  firm  to  appoint  such 
agents  as  may  reasonably  be  needed  to  carry  on  the  part- 
nership business;  and  the  appointment  by  one  partner, 
within  the  limits  indicated,  is  deemed  an  appointment  by 
all." 

7  Graham  v.  Cummings,  208  Pa.  St.  516,  57  All.  943;  Noe  v. 
Christie,  51  N.  Y.  270;  Chouteau  v.  Goddins,  39  Mo.  229,  90  Am. 
Dec.  462. 

8  Peiminter  v.  Kelly,  18  Ala.  716,  54  Am.  Dec.  177;  Sims  v.  Dame, 
113  Ind.  127, 15  N.  E.  217;  Keay  v.  Fenwick,  1  C.  P.  Div.  745  (Eng.) 

0  Sewf'll  V.  Holland,  61  Ga.  608;  Murray  v.  Haverty.  70  111.  318; 
Tipping  V.  Robbins,  64  Wis.  546,  25  N.  W.  713;  Richey  y.  Brown, 
58  Mich.  435,  25  N.  W.  386. 

10  Story  on  Partnership,  §  1;  Deakin  v.  Underwood,  37  Minn. 
98,  33  N.  W.  318. 

11  Paton  V.  Baker,  62  Iowa,  704;  Harvey  v.  McAdams,  32  Mich. 
472;  Carley  v.  Jenkins,  46  Vt.  721;  Coons  v.  Renick.  11  Tex.  134. 
CO  Am.  Dec.  230.  To  appoint  an  agent  for  a  purpose  not  within 
the  acopfi  of  the  partnership  business,  the  concunence  of  all  the 
partners  would  be  necessary.  Burgan  v.  Lyell,  2  Mich.  102,  55  Am. 
Dec.  53;   Durgin  v.  Somcrs,  117  Mass.  55. 


CAPACITY    OF   PARTIES.  13- 

§  15.  Voluntary  associations,  clubs,  societies.  Volun 
tary  associations,  such  as  clubs,  religious  or  charitable  so- 
cieties and  the  like,  when  not  incorporated,  do  not  possess 
a  distinct  legal  entity,  like  a  corporation,  which  is  compe- 
tent to  appoint  an  agent  or  to  enter  into  contracts. ^^ 
Neither  is  an  association  of  this  character  a  partnership ; 
and  consequently  members  are  not  bound  by  one  another's 
acts  or  contracts  as  in  the  case  of  partners. ^^  Contracts 
may  be  made  in  the  name  of  members  of  the  association,  but 
only  those  are  bound  by  such  a  contract  who  have  expressly 
or  impliedly  given  their  assent  to  the  same."  Hence  no 
member  can  be  made  liable  for  debts  incurred,  or  be  bound 
by  any  contract  entered  into,  on  behalf  of  such  an  associa- 
tion by  its  officers,  or  other  members,  unless  a  relation  of 
principal  and  agent  can  be  established  between  the  mem- 
ber sought  to  be  bound  and  those  who,  purporting  to  rep- 
resent the  association,  incurred  the  debt  or  entered-  into  the 
contract.^^  The  existence  of  such  a  relation  will  not  be  in- 
ferred from  the  fact  of  membership,  as  in  the  case  of  part- 
ners ;  but  actual  delegation  of  authority  must  be  established 

izWestbrook  v.  Griffin,  132  Iowa,  185,  109  N.  W.  608;  Pearson 
V.  Anderberg,  28  Utah,  495,  80  Pac.  307;  Liggett  v.  Ladd,  17  Ore. 
89,  21  Pac.  133.  A  voluntary  association  can  not  be  a  devisee  by 
its  association  name.  "White  v.  Howard,  46  N.  Y.  144.  Or  ho!d 
real  estate.  Goesele  v.  Bimeler,  14  How.  (U.  S.)  589.  Such  an 
association  must  sue  and  be  sued  in  the  names  of  the  individual 
members,  unless  otherwise  provided  by  statute.  Guild  v.  Allen, 
28  R.  I.  430,  67  Atl.  855. 

13  Burt  V.  Lathrop,  52  Mich.  106,  17  N.  W.  716;  Davison  v.  Hol- 
den,  55  Conn.  103,  10  Atl.  515. 

14  Ash  V.  Gui,  97  Pa.  St.  493,  39  Am.  Rep.  818;  Newell  v.  Borden, 
128  Mass.  31;  Wilcox  v.  Arnold,  162  Mass.  577,  39  N.  E.  414. 

15  Lewis  v.  Tilton,  64  Iowa,  220.  19  N.  W.  911;  Castner  v.  Rinne, 
31  Colo.  256,  72  Pac.  1052;  Cheney  v.  Goodwin,  88  Me.  563,  34  Atl. 
420;  Hornberger  v.  Orchard,  39  Neb.  639,  58  N.  W.  425. 


14  THE  LAW   OF   AGENCY. 

in  order  to  create  liability.^^  Thus  where  a  number  of  per- 
sons, members  of  a  Masonic  lodge,  were  sought  to  be  held 
liable  upon  a  certificate  of  indebtedness,  executed  by  the 
master  and  wardens,  for  a  debt  incurred  in  the  erection  of 
a  lodge  building,  but  there  was  no  evidence  that  they  had 
participated  in  the  enterprise,  or  in  any  way  acquiesced  in 
the  creation  of  the  obligation,  it  was  held  that  they  were 
not  bound  by  the  same.^^  And  so,  where  at  a  meeting  of  an 
unincorporated  association,  organized  for  the  purpose  of 
stimulating  interest  in  the  raising  of  poultry,  the  board  of 
directors  was  authorized  to  give  a  public  exhibition,  and  a 
premium  list  was  adopted  by  a  vote  of  the  society,  it  was 
held,  in  an  action,  subsequently  brought,  to  compel  defend- 
ants, as  members,  to  contribute  their  share  of  the  expense 
of  the  exhibition,  that  mere  membership  would  not  create 
liability,  and  that  only  those  members  who  joined  in  the 
vote  to  hold  the  exhibition,  or  in  some  way  assented  to  be 
bound  thereby,  could  be  held  liable  for  the  expense  in- 
curred.^® 

This  actual  assent,  however,  to  be  bound  by  majority 
action,  or  by  contracts  made  by  officers  or  committees,  need 
not  be  expressly  given  but  may  be  implied  from  the  cir- 
cumstances of  the  case  or  the  acts  of  the  parties."  Thus, 
if  the  constitution  or  by-laws  of  an  association  should  pro- 
vide that  members  aic  Ixnind  hy  a  majority  vote  or  that 

"McCabo  V.  Goodfellow,  in.3  N.  Y.  89,  30  N.  E.  728;  Lafond  v. 
Deems.  81  N.  Y.  507;  Rice  v.  Peninsular  Club,  52  Mich.  87,  17  N. 
W.  708;  FlRuiyng  v.  Hector,  2  M.  &  W.  172. 

17  Ash  V.  nui,  97  Pa.  St.  493,  39  Am.  Rep.  818. 

18  Ray  V.  Powers,  134  Mass.  22.  The  rule  was  held  to  be  the 
same  where  an  exhibitor  sued  for  a  premium  that  had  been 
awarrled  him.    Volger  v.  Ray,  131  Mass.  439. 

1"  Davison  v.  Ilolden,  55  Conn.  103,  10  Atl.  515;  Heath  v.  Qos- 
lln,  80  Mo.  310,  50  Am.  Rep.  505;  Todd  v.  Emly,  7  M.  &  W.  (Eng.) 
427. 


CAPACITY   OF  PARTIES.  15 

particular  officers  shall  have  authority,  within  prescribed 
limits,  to  bind  the  association  by  contract,  acceptance  of 
membership  therein,  in  the  face  of  such  provisions  in  its 
constitution  or  laws,  indicates  a  willingness  to  be  bound 
thereby.  When  a  person,  therefore,  joins  an  association, 
which  is  subject  to  laW'S  or  regulations  of  the  character  de- 
scribed, he  impliedly  consents  to  be  governed  by  their  pro- 
visions, and  thus  confers,  in  advance,  authority  upon  proper 
officers  or  committees,  under  prescribed  circumstances,  to 
bind  him  by  such  contracts  as  come  reasonably  within  the 
contemplation  of  the  rules  or  regulations  of  the  society.^" 
So,  in  the  absence  of  such  provisions,  an  implication  of  au- 
thority may  arise,  as  in  other  cases  of  agency,  from  the  con- 
duct of  the  parties.-^  Thus  certain  members  of  a  commit- 
tee, having  in  charge  a  public  dinner,  were  held  liable  for 
a  share  of  the  expense  of  the  same,  notwithstanding  that 
they  voted  against  it;  their  assent,  in  this  case,  being  in- 
ferred from  the  fact  that  after  the  vote  was  taken  they 
remained  at  the  meeting  and  acquiesced  by  their  silence  in 
the  ordering  of  the  dinner."  And  so,  there  may  be  cases 
where  the  object  for  which  an  association  is  organized  is  so 
clear  and  the  acts  done  so  essential  to  the  furtherance  of 
that  object,  that  all  members  will  be  presumptively  bound 
without  evidence  of  express  assent.-^ 

aoKalbitzer  v.  Goodhue,  52  W.  Va.  435,  44  S.  E.  264;  Bennett 
V.  Lathrop,  71  Conn.  613,  42  Atl.  634;  Devoss  v.  Gray,  22  Ohio  St 
169.  One  can  not  become  a  member  of  a  voluntary  unincorpo- 
rated association  unless  he  signs  or  in  some  way  assents  to  the 
constitution  and  by-laws.  Konta  v.  St.  Louis  Stock  Exchange,  189 
Mo.  26,  87  S.  W.  969. 

21  Wilcox  V.  Arnold,  162  Mass.  577,  39  N.  E.  414;  Heath  v.  Gos- 
lin,  80  Mo.  310. 

22Bichbaum  v.  Irons.  6  Watts  &  S.  (Pa.)  67,  40  Am.  Dec.  540; 
Wilcox  V.  Arnold,  supra. 

23  Persons  who  organize  as  a  campaign  committee  on  the  eve 


I 


16  THE   LAW   OF   AGENCY. 

§  16.  Who    may    not    be    principal,     (a)  In    general. 

Those  persons  whom  the  law  declares  incompetent  to  enter 
into  contracts  can  not,  as  we  have  seen,  appoint  agents  or 
contract  through  agents.  This  incompetency  may  arise 
from  natural  incapacity,  as  in  the  case  of  insane  or  drunken 
persons;  or  it  may  arise — to  use  the  stock  phrase — from 
operation  of  law,  as  in  the  case  of  aliens,  married  women 
and  infants.^* 

§  17.  Insane  persons.  The  law  is  generally  declared  to 
be  that  an  insane  person  can  not  appoint  an  agent,  nor. 
even  after  regaining  sanity,  ratify  a  contract  made  in  his 
behalf  by  one  who  assumed  to  act  as  agent.^^  This  rule, 
apparently,  is  founded  upon  the  doctrine  that  contracts  of 
insane  persons  are  void ;  -®  and  may  be  cited  as  an  example 
of  the  failure  of  one  branch  of  the  law  to  keep  pace,  in  a 
forward  advance,  with  another.  It  is  the  modern  law  that 
the  contract  of  an  insane  person,  unless  he  is  under  legal 
guardianship,-'    is  voidable,  at  his  option,  but  not  void.^^ 

of  an  election  may  be  supposed  to  know  that  their  associates,  in 
the  name  of  the  committee,  will  incur  certain  obvious  expenses  in 
giving  public  notice  of  political  meetings,  and  thus  they  sanction 
such  outlay  by  the  very  fact  of  their  organization.  Richmond  v. 
Judy,  6  Mo.  App.  4G.5. 

-*  Bishop  on  Contracts,  Chap.  XXXIII,  et.  seq. 

2r.  Dexter  v.  Hall,  IT.  Wall.  (IT.  S.)  0;  Marvin  v.  Tnglis.  39  How. 
Prac.  329;  Elias  v.  Enterprise  Building  &  Loan  Ass'n,  46  N.  C. 
188,  LM  S.  E.  102;  McClun  v.  McClun,  176  111.  :!76,  .'32  N.  E.  928.  A 
deaf  mute  who  does  not  understand  any  matter  of  business,  can 
not  manage  his  own  affairs,  and  consequently  can  not  appoint  an 
■■r^Hiii.  In  re  rcrriiic.  J 1  N.  .1.  E(|.  409,  5  Atl.  579.  A  person  can 
ratify  an  act  only  where  he  would  have  been  capable  of  author- 
izing It.     Post  §  5G. 

20  Seavers  v.  T^helps,  11  Pick.  (Mass.)  ?,0'i;  Van  Deusen  v. 
Sweet.  51  N.  Y.  378. 

27  PMtzhugh  V.  Wilcox,  l?  Parb.    (N.  Y.)    -?.'>:    Iluniham  v.  Kid- 


CAPACITY    OF  PARTIES.  17 

Hence  it  would  seem  logically  to  follow  that  the  appoint- 
ment of  an  agent  by  an  insane  person,  not  under  guardian- 
ship, is  merely  voidable,  and  that  any  contract  made  by 
such  agent,  in  behalf  of  his  principal,  could  be  ratified  by 
the  latter  upon  regaining  sanity.  Such,  however,  as  we 
have  indicated,  is  not  generally  held  to  be  the  law ;  though 
in  at  least  one  modern  case  the  doctrine  has  been  squarely 
adopted,  and  in  time  will  doubtless  be  accepted  as  the  rule.^* 
It  is  a  rule  of  the  law  of  contracts  that  where  an  insane 
person  enters  into  an  agreement  with  another  party  who 
has  no  knowledge  of  the  existence  of  the  insanity,  but  deals 
fairly  and  in  good  faith,  the  contract  will  be  deemed  valid, 
if  the  same  has  been  executed  in  whole  or  in  part  and  the 
parties  can  not  be  restored  to  statu  quo.^'^  This  rule  would 
seem  still  to  be  applicable  though  the  contract,  in  question, 

well,  113  111.  425;  Lynch  v.  Dodge,  130  Mass.  458;  Hughes  v.  Jones, 
116  N.  Y.  67,  15  Am.  St.  Rep.  386.  It  has  been  held  that  this  abso- 
lute disability  extends  only  to  contracts  made  in  the  state  where 
the  guardian  was  appointed.  Gates  v.  Bingham,  49  Conn.  275; 
Contra,  American  Trust  Co.  v.  Boone,  102  Ga.  202. 

2s  Bishop  on  Contracts,  Chap.  XXXV;  Person  v.  Warren,  14 
Barb  (N.  Y.)  488;  Fay  v.  Burdett,  81  Ind.  433,  42  Am.  Rep.  142. 
To  avoid  a  contract,  free  from  fraud  or  undue  influence,  on  the 
ground  of  insanity  of  a  party  thereto,  it  must  appear  that  by  rea- 
son of  his  insanity,  he  had  no  reasonable  understanding  of  the 
nature  and  terms  of  the  contract.  Swartwood  v.  Chance,  131  Iowa, 
714,  109  N.  W.  297. 

29  Williams  v.  Sapieha,  94  Tex.  430,  61  S.  W.  115;  Post  §  56. 

30  Alexander  v.  Haslcins,  68  Iowa,  73;  Hosier  v.  Beard,  54  Ohio 
St.  398,  56  Am.  St.  Rep.  720;  Physio-Medical  College  v.  Wilkinson. 
108  Ind.  314,  9  N.  E.  167;  Studebaker  v.  Faylor,  170  Ind.  498,  83 
N.  E.  747;  Smith's  Committee  v.  Forsythe,  28  Ky.  Law  Rep.  1034, 
90  S.  W.  1075.  It  has  been  held,  however,  that  the  defense  of  in- 
sanity may  be  interposed  to  an  action  on  a  contract  without  re- 
storing what  the  insane  person  has  received,  if  it  can  not  be  re- 
stored in  specie.    Rea  v.  Bishop,  41  Neb.  202,  59  N.  W.  555. 


18  THE  LAW   OF   AGENCY. 

was  made  through  an  agent.'^  So,  the  coutract  of  an  in- 
sane person  made  during  a  lucid  interval  is  binding  upon 
him ; '-  and  this  rule  would  undoubtedly  apply  to  contracts 
made  through  an  agent.^' 

§  18.  Drunken  persons.  The  contract  of  a  person  so 
intoxicated  as  to  be  incapable  of  understanding  his  act,  is 
voidable ;  but  may  be  ratified  by  the  drunkard  when  he  be- 
comes sober.^*  There  seems  no  reason  why  this  rule  should 
not  apply  to  contracts  made  through  an  agent.^** 

§  19.  Aliens.  In  the  United  States,  aliens  have  full 
capacity  to  contract,^*'  except  during  war  between  their 
country  and  this.^^  Hence  alien  friends  may  appoint 
agents  and  contract  through  agents.®^ 

31  Davis  V.  Lane,  10  N.  H.  156;  MatMessen,  etc.  Refining  Co.  v. 
McMahon,  38  N.  J.  Law,  536. 

32Ricketts  V.  Jolliff,  62  Miss.  440;  In  re  Gangwere,  14  Pa.  St. 
417,  53  Am.  Dec.  554;  Lilly  v.  Waggoner,  27  111.  395.  A  lucid  in- 
terval is  such  a  full  return  of  the  mind  to  sanity  as  places  the 
party  in  the  possession  of  the  powers  of  mind,  enabling  him  to 
understand  and  transact  his  affairs  as  usual.  Elkin  v.  McCrack- 
en,  32  Leg.  Int.  405. 

33  Mechem  on  Agency,  §  48;  Daily  Telegraph  Co.  v.  McLaughlin, 
73  Law  J.  P.  C.  (Eng.)  95. 

34  Schramm  v.  O'Connor,  98  111.  539;  Bush  v.  Breinig,  113  Pa. 
St.  310,  57  Am.  Rep.  469;  Lyon  v.  Philips,  106  Pa.  St.  57;  Lawson 
on  Contracts,  §  163. 

35  Tiffany  on  Agency,  p.  101. 

30  Aliens  are  prohibited  by  statute  in  some  states  from  acquir- 
ing or  holding  land;  otherwise  the  jiower  of  an  alien  friend  to 
contract  is  co-extensive  with  that  of  a  citizen.  Taylor  v.  Car- 
penter, 3  Story,  458;  Roberts  v.  Knights,  7  Allen  (Mass.)  449; 
Cra.shley  v.  Press  Pub.  Co.,  179  N.  Y.  27,  71  N.  E.  258. 

37  Shotwell  v.  Ellis,  42  Miss.  439;  Zacharie  v.  Godfrey,  50  111. 
186,  99  Am.  Dec.  506.  A  contract  made  before  war,  is  suspended 
during  the  continuance  thereof,  but  on  the  return  of  peace  all 
rights  thoreundcr  revive.    Ware  v.  Hylton,  3  Dall.  199. 

•tiUnltod  Slatps  v.  Gro.ssmayer,  9  Wall.   (U.  S.)   72;   New  York 


CAPACITY    OF   PARTIES.  19 

§  20.  Married  women.  At  common  law,  married 
women  were  incompetent  to  contract  and  hence  could  not 
appoint  agents.'^  ]\Iarried  Woman  Acts  have  removed  this 
disability,  and  today  a  married  woman  has  usually  the 
same  capacity  to  contract  as  a  feme  sole,  and  hence  may 
appoint  an  agent  or  contract  through  an  agent.*" 

§  21.  Infants.  The  law  governing  the  right  of  an  in- 
fant to  appoint  an  agent,  or  to  act  through  an  agent,  pre- 
sents the  same  inconsistency  as  that  which  characterizes  the 
rule  applicable  to  the  appointment  of  agents  by  insane  per- 
sons. In  face  of  the  general  doctrine  that  contracts  of  an 
infant  are  merely  voidable  and  susceptible  of  ratification,''^ 
the  law  is  generally  declared  to  be  that  an  infant  can  not 
appoint  an  agent,  nor,  after  gaining  majority,  ratify  a  con- 
tract made  in  his  behalf  by  one  who  undertook  to  act  as 
his  agent. *- 

Life  Ins.  Co.  v.  Davis,  95  U.  S.  425.     War  usually  terminates  an 
agency.    Post  §  77. 

39  Norris  v.  Lantz,  18  Md.  260;  Rogers  v.  Higgins,  48  111.  211: 
Parrar  v.  Bessey.  24  Vt.  89;  Caldwell  v.  Walters,  18  Pa.  St.  79. 
55  Am  Dec.  592. 

40  Bishop  on  Contracts,  §  951;  Hoene  v.  Pollak,  118  Ala.  G17,  24 
South.  349;  Lavassar  v.  Washburne,  50  Wis.  200,  6  N.  W.  516;  Mc 
Laren  v.  Hall,  26  Iowa,  297;  Baum  v.  Mullen.  47  N.  Y.  577;  Wil 
liams  V.  Paine,  169  U.  S.  55.  The  extent  of  a  married  woman's 
capacity  to  contract  will,  of  course,  be  determined  by  the  provis- 
ions of  the  enabling  statute,  which  creates  the  power.  Nash  v. 
Mitchell,  71  N.  Y.  199,  27  Am.  Rep.  38. 

*i  Bishop  on  Contracts,  §  924;  Bozeman  v.  Browning,  31  Ark 
?M',  Philpot  V.  Sandwich  Mfg.  Co..  18  Neb.  54,  24  S.  W.  428;  Wat- 
son V.  Ruderman,  79  Conn.  687,  66  Atl.  515;  Damron  v.  Ratliff,  30 
Ky.  Law  Rep.  67,  97  S.  W.  401.  A  deed  of  an  infant  is  not  void, 
'  ut  only  voidable  on  his  disaffirmance.  Robison  v.  Allison.  192 
Mo.  366,  91  S.  W.  115. 

*2Armitage  v.  Widoe,  36  Mich.  124;  Semple  v.  Monison,  23  Ky. 
298;    Sawyer  v.  Northan.  112  N.  C.  261,  16  S.  E.  1023:   Holdon  v. 


20  THE   LAW   OP   AGENCY. 

The  reason  for  the  rule  has  been  stated  as  follows:  "The 
constituting  of  an  attorney  by  one  whose  acts  are  in  their 
nature  voidable,  is  repugnant  and  impossible,  for  it  is  im- 
parting a  right  which  the  principal  does  not  possess, — ^that 
of  doing  valid  acts.  If  the  acts  when  done  by  the  attorney 
remain  voidable  at  the  option  of  the  infant,  the  power  of 
attorney  is  not  operative  according  to  its  terms;  if  they  are 
binding  upon  the  infant,  then  he  has  done  through  the 
agency  of  another  what  he  could  not  have  done  directly — 
binding  acts.  The  fundamental  principle  of  law  in  regard 
to  infants  requires  that  the  infant  should  have  the  power 
of  affirming  such  acts  done  by  the  attorney  as  he  chooses, 
and  avoiding  others,  at  his  option ;  but  this  involves  an  im- 
mediate contradiction,  for  to  possess  the  right  of  availing 
himself  of  any  of  the  acts,  he  must  ratify  the  power  of 
attorney,  and  if  he  ratifies  the  power,  all  that  was  done  un- 
der it  is  confirmed.  If  he  afBrms  part  of  a  transaction,  he 
at  once  confirms  the  power,  and  thereby,  against  his  inten- 
tion, affirms  the  whole  transaction.""  This  reasoning  is 
ingenious,  though  probably  too  refined.  There  seems  no 
practical  reason  why  an  infant  could  not  ratify  distinct 
acts  done  by  his  agent  without  necessarily  affirming  the 
entire  agency,  or  binding  himself  by  all  acts  done  there- 
under. 

The  rule,  in  any  event,  has  not  met  with  unqualified  ap- 
proval by  the  courts.  Many  decisions  confine  its  applica- 
tion to  powers  of  attorney  to  sell  land  or  to  confess  judg- 
ment;** and  in  at  least  two  modern  cases  the  entire  doc- 
Curry,  85  Wis.  504,  55  N.  W.  965.  Infants  can  not  have  an  attor- 
ney In  fact  since  they  have  no  capacity  to  execute  a  valid  power 
of  attorney.     Glass  v.  Glass,  70  Ala.  308;  Post  §  5G. 

*»1  Am.  Lead.  Gas.   (Hth  ed.)   247. 

4*\Vliifiioy  V.  Diiicli,  11  Muss.  457,  7  Am.  Dec.  229;   Fairbanks 


CAPACITY   OP  PARTIES.  21 

trine  has  been  repudiated.  ''On  principle,"  says  the  court 
in  a  Minnesota  case,  "we  think  the  power  of  attorney  of 
an  infant,  and  the  acts  and  contracts  made  under  it,  shouki 
be  considered  voichible  in  the  same  manner  as  his  personal 
acts  and  contracts  are  considered  voidable. ' '  *^  This  seems 
more  in  accord  "with  modern  reasoning,  and  doubtless  will 
be  followed ;  so,  it  may  be  surmised,  that  at  no  great  future 
date  the  law  will  be  that  an  infant  may  make  voidable  ap- 
pointment of  an  agent,  and,  upon  attaining  majority,  may 
affirm  the  agency  and  ratify  contracts  made  in  his  behalf 
by  the  agent.*" 

§  22.  Who  may  be  agents.  Since  the  relation  of  agency 
is  founded  on  contract,  it  would  seem,  at  first  blush,  that 
only  those  persons  could  be  agents  who  are  capable  of  being 
principals,  namely  such  persons  only  who,  in  law,  are  com- 
petent to  contract.  The  primary  purpose  of  an  agency, 
however,  is  to  bring  the  principal  into  contractual  relations 
with  third  persons ;  and  this  purpose  may  be  accomplished 
through  the  mediumship  of  an  agent  who  himself  is  incom- 
petent to  contract.*^     Where  a  person,  having  capacity  to 

V.  Snow,  145  Mass.  153,  13  N.  E.  596;  Towle  v.  Dresser,  73  Me. 
252;  Hastings  v.  Dollarhide,  24  Cal.  195.  Thus  where  an  infant 
authorized  an  agent  to  indorse  a  note  it  was  held  that  the  indorse- 
ment was  merely  voidable  and  could  be  ratified  by  the  infant. 
Whitney  v.  Dutch,  supra. 

4s  Coursolle  v.  Weyerhauser,  69  Minn.  328,  72  N.  W.  697;  Fer- 
guson V.  Houston,  etc.,  R.  Co.,  73  Tex.  344,  11  S.  W.  347. 

46  Hardy  v.  Waters,  38  Me.  450;  Coursolle  v.  Weyerhauser. 
supra;  Williams  v.  Sapieha,  94  Tex.  430,  61  S.  W.  115. 

*7  Lang  V.  Waters,  47  Ala.  624;  Brown  v.  Hartford  Ins.  Co.,  117 
Mass.  479;  Stall  v.  Meek,  70  Pa.  St.  181.  The  execution  of  a  naked 
authority  can  be  attended  with  no  manner  of  prejudice  to  per- 
sons under  incapacities  or  disabilities  nor  to  any  other  person 
who  by  law  may  claim  any  interest  of  such  disabled  person  after 
death.    Bacon's  Abridgement. 


22  THE  LAW   OF   AGENCY. 

contract,  appoints  an  agont,  v.ho  does  not  possess  tliis  ca- 
pacity, the  contract  of  agency  Between  them  is  imperfect, 
and  the  duties  and  obligations  usually  created  by  such  a 
contract,  would  not  be  binding  upon  the  agent.*^  Thus  the 
principal  could  not  maintain  an  action  for  failure  to  obey 
instructions;^^  though  he  could  sue  the  agent  in  tort/° 
So,  where  an  agent  is  not  himself  competent  to  contract,  no 
contractual  obligation  could  be  created  between  him  and 
third  parties  with  whom  he  deals;  as  is  sometimes  the  case 
with  agents  legally  competent. ^^  So  far,  however,  as  the 
principal  and  third  parties  are  concerned,  it  matters  not 
that  the  agent  through  whom  they  deal  does  not  himself 
possess  power  to  contract.®^ 

§  23.  Infants,  insane  persons  and  married  women.     It 

is  sometimes  stated  as  the  rule  that  an  infant  above  the  a£:e 
of  seven  may  act  as  agent;  ^^  but  there  seems  no  reason  for 
fixing  an  arbitrary  age  limit,  as  a  child  of  five  might  be  as 

48  So  far  as  the  contract  of  agency  itself  is  concerned,  the 
agent  contracts  in  his  own  behalf  with  the  principal  and  hence 
will  not  be  bound  by  its  terms  if  he  does  not  possess  contractual 
capacity;  such  a  contract,  like  any  other  entered  into  by  an  in- 
fant would  be  voidable.  Derocher  v.  Continental  Mills,  58  Me. 
217,  4  Am.  Rep.  286;  Gaffney  v.  Hayden,  110  Mass.  137,  14  Am. 
Rep.  580. 

'f'Vasse  V.  Smith,  fi  Cranch.  (U.  S.)  226;  Vent  v.  Osgood,  19 
Pick.    (Mass.)   572;   Studwell  v.  Shapter,  54  N.  Y.  249. 

'■'>  It  is,  of  course,  the  general  doctrine  that  infants  are  liable 
for  their  torts.  Cooley  on  Torts,  Chap.  IV;  Fry  v.  Leslie.  87  Va. 
269,  12  S.  E.  671. 

•'•i  Caswell  V.  Parker,  90  Me.  30,  51  All.  238;   Post,  Chap.  XIII. 

'•2  A  slav(>,  who  is,  homo  non  civilis,  a  person  who  is  little  above 
a  brute  in  legal  rights,  may  act  as  agent  for  his  owner  or  hirer. 
Lyon  V.  Kent,  45  Ala.  656. 

r-aLyon  v.  Kent,  45  Ala.  656;  Talbot  v.  Bowen.  1  A.  K.  Marsh. 
fKy.)  436.  10  Am.  Dec.  747. 


CAPACITY   OP  PARTIES.  23 

competent,  actually,  to  perform  some  of  the  simpler  duties 
of  an  agent,  such  as  delivering  a  message  or  a  deed,  a^s 
would  be  a  child  of  seven. ^*  As  indicated  in  the  preceding 
section,  the  contract  of  agency  would  not  be  binding  upon 
the  infant  agent,  nor  could  any  contractual  obligations  arise 
between  him  and  third  parties  with  whom  he  deals. ^^ 

The  rule  as  to  infants  would  seem  applicable  to  insane 
persons;  on  principle,  there  is  no  reason  against  their  per- 
forming some  simple  duties  of  an  agent.  Bvit  Story  say.-^ 
that  "an  idiot,  lunatic  or  person  otherwise  non  compos 
mentis  can  not  do  any  act,  as  an  agent  or  attorney,  binding 
upon  the  principal. "  ^^ 

At  common  law,  a  married  woman,  though  incompetent 
to  contract,  could  act  as  agent  either  for  her  husband,  or 
ior  another,  in  dealings  with  third  persons.^" 

§  24.  Corporations  and  partnerships.  AYithin  the  scope 
of  its  corporate  powers,  a  corporation  may  act  as  agent  for 
other  corporations  or  individuals.^*  So  a  partnership  may 
be  appointed  agent;  and  in  the  absence  of  express  restric- 
tion, either  partner  may  execute  the  authority,  in  accord- 

54  It  would  seem  that  neither  the  principal,  who  chose  the  in- 
fant agent,  nor  the  third  person,  who  voluntarily  dealt  with  him, 
would  be  in  a  position  to  afterwards  object  to  his  incapacity. 
Cameron  v.  Ward,  22  Ga.  168;  Freeman  v.  Great  Western  Ry.  Co., 
38  L.  T.  Rep.  851. 

05  Vasse  V.  Smith,  6  Cranch.  (U.  S.)  226;  Widrig  v.  Taggart,  51 
Mich.  103,  16  N.  W.  251. 

56  Story  on  Agency,  §  7;  See,  Cobb  v.  Judge,  43  Mich.  289,  5  N. 
W.  309. 

5'  Heney  v.  Sargent,  54  Cal.  396;  Benjamin  v.  Benjamin,  15 
Conn.  347,  39  Am.  Dec.  384:  Edgerton  v.  Thomas,  9  N.  Y.  40; 
Butler  V.  Price,  110  Mass.  97. 

58  McWilliams  v.  Detroit  Mills  Co.,  31  Mich.  275. 


24  THE  LAW   OF   AGENCY, 

ance  with  the  rule  that  within  the  limits  of  partnership 
business,  the  act  of  one  partner  is  the  act  of  all.^'' 

§  25.  Persons  adversely  interested.  An  agent  owes  to 
liis  principal  disinterested  service,  which  must  be  rendered 
in  absolute  good  faith ;  ^°  and  it  would,  consequently,  dis- 
qualify one  to  act  as  agent  for  another  if  his  interests  were 
in  the  slightest  degree  antagonistic  to  those  of  his  princi- 
pal.^^ An  agent,  therefore,  can  not  act  for  both  parties  to 
a  transaction  without  their  knowledge  and  consent ;  ®^  nor 
can  an  agent  himself  become  a  party  to  a  transaction  in 
which  he  acts  as  representative  of  another;  except  with  the 
assent  of  the  latter.^^  Thus,  where  the  same  person  wrong- 
so  Deakin  v.  Underwood,  37  Minn.  98,  5  Am.  St.  Rep.  827,  33  N. 
W.  318;  Eggleston  v.  Boardman,  37  Mich.  14;  Lemke  v.  Faust- 
man,  124  111.  App.  G24. 

soCondit  v.  Blakewell,  22  N.  J.  Eq.  481;  Williams  v.  Moore- 
Gaunt  Co.,  3  Ga.  App.  756,  60  S.  E.  372;  Thorne  v.  Brown,  63  W. 
Va.  603,  60  S.  E.  614;  Kilbourn  v.  Sunderla'-d,  130  U.  S.  505,  9  Sup. 
Ct.  594. 

ci  Knabe  v.  Ternot,  16  La.  Ann.  13;  Tynes  v.  Grimstead,  1  Tenn. 
Ch.  508;  Prichard  v.  Abbott,  104  Md.  560,  65  Atl.  421;  Calmon  v. 
Saraille,  142  Gal.  638,  76  Pac.  486.  The  adverse  interest  which 
precludes  an  agent  from  acting  for  his  principal  must  be  in  the 
subject  matter  of  the  agency.    Gaty  v.  Sack,  19  Mo.  App.  470. 

•;-  Schwartze  v.  Yearly,  31  Md.  270;  Young  v.  Hughes,  32  N.  J. 
Eq.  372;  Robison  v.  Jarvis,  25  Mo.  App.  421.  The  maxim  "no  man 
shall  serve  two  masters,"  does  not  prevent  the  same  person  from 
acting  as  agent,  for  certain  purposes,  of  two  or  more  parties  to 
the  same  transaction  when  their  interests  do  not  conflict,  and 
where  loyalty  to  one  is  not  a  breach  of  duty  to  the  other.  Todd 
V.  German  American  Ins.  Co.,  2  Ga.  App.  789,  59  S.  E.  94. 

03  Swindell  v.  Latham,  145  N.  C.  144,  58  S.  E.  1010;  Pegram  v. 
Charlotte,  etc.,  Ry.  Co.,  84  N.  C.  696,  37  Am.  Rep.  639;  Dorrah  v. 
mil,  73  .Miss.  787,  19  South.  961;  Rochester  v.  Levering,  104  Ind. 
562.  4  N.  E.  203.  An  agent  will  not  be  allowed  to  deal  in  his  own 
beh.'ilf  with  his  prinfipal  with  reference  to  the  subject  matter  of 
the  agency   unless   he   makes   full   and   honest   disclosure  of  the 


CAPACITY   OP  PARTIES.  25 

fully  acts  as  agent  for  both  buyer  and  seller,  either  may 
repudiate  the  sale ;  ^*  and  where  an  agent  employed  to  sell 
property  sells  to  himself,  or  one  authorized  to  buy  prop- 
erty, buys  from  himself,  the  transaction  will  not  be  binding 
upon  the  principal. ^^ 

§  26.  Unlicensed  agents.  "Where  it  is  required  by  stat- 
ute that  a  person  secure  a  license  as  a  condition  precedent 
to  engaging  in  a  particular  business,  failure  to  comply 
therewith  will  preclude  recovering  of  compensation  for 
services  rendered;  though  it  will  not  invalidate  a  contract 
made  by  such  person  in  behalf  of  his  principal  with  third 
parties.^®  Thus  where  a  real  estate  broker  did  not  equip 
himself  with  the  required  license  to  engage  in  his  occupa- 
tion, he  could  not  enforce  a  contract  for  commission  on 
sales.*'''  And  so,  a  party  who  represented  himself  to  be  a 
duly  authorized  attorney,  and,  as  such,  was  employed  by 
another,  but  who,  as  a  matter  of  fact,  had  not  been  licensed 
to  practice  law,  could  not  recover  for  services  rendered.''^ 

truth  of  the  transaction.  Curry  v.  King,  6  Cal.  App.  568,  92  Pac. 
662. 

64  Meyers  v.  Hanchett,  43  Wis.  246;  Rice  v.  Wood,  113  Mass. 
133,  18  Am.  Rep.  459.  When  a  professional  land  agent  acts  aft 
agent  for  both  buyer  and  seller,  and  that  is  known  to  them,  the 
law  requires  the  most  perfect  good  faith  on  his  part.  Morgan  v 
Hardy,  16  Neb.  427. 

65jansen  v.  Williams,  36  Neb.  869,  55  N.  W.  279;  Burke  v. 
Bours,  98  Cal.  171,  32  Pac.  980;  Montgomery  v.  Hundley,  205  Mo. 
138,  103  S.  W.  527.  Where  an  agent  purchases  property  himself 
the  fact  that  it  brought  the  price  at  which  he  was  authorized  to 
sell  will  not  validate  the  transaction.  Tillery  v.  Wolverton,  46 
Minn.  256,  48  N.  W.  908;  Rich  v.  Black,  173  Pa.  St.  92.  33  Atl.  880. 

60  Hittson  V.  Browne,  3  Colo.  304;  Stevens  v.  Ewing,  87  Tenn. 
46,  9  S.  W.  230. 

67  Stevens  v.  Ewing,  supra;  Johnson  v.  Hulings,  103  Pa.  St.  498; 
Buckley  v.  Humason,  50  Minn.  195.  52  N.  W.  385. 

«sTedrick  v.  Hiner,  61  111.    189;    Ames    v.    Kilman,    10    Mete. 


26  THE  LAW   OF   AGENCY. 

§  27.  Joint  agents.  A  person  may,  if  he  see  fit,  create 
a  joint  agency,  and  the  law  will  enforce  his  desire  to  benefit 
hv  the  combined  judgment  or  talent  of  two  or  more  agents.^® 
Thus  where  two  persons  are  appointed  jointly  to  manage, 
for  a  specified  term,  the  business  of  the  principal,  and  one 
of  them  becomes  incapacitated,  the  business  can  not  be  per- 
formed by  the  other  alone ;  and  the  principal  is  free  to  dis- 
continue the  agency,  without  breach  of  contract,  before  the 
expiration  of  the  term.'^"  So  where  a  power  is  given  to  A 
and  B  to  sell  land,  the  same  can  not  be  executed  by  either 
of  them  individually;  unless  an  intention  to  confer  a  sev- 
eral, as  well  as  a  joint  authority,  is  clearly  manifest.'^  And 
the  same  rule  is  applicable  where  authority  is  conferred 
upon  more  than  two  agents;  all  must  act  in  the  execution 
of  the  power,  and  unless  a  contrary  intention  appears,  an 
intermediate  number,  though  a  majoritv  of  all,  would  have 
no  authority  to  bind  the  principal. '- 

§  28.  Public  agency.  In  the  case  of  a  public  agency^ 
such  as  a  school  board,  a  board  of  commissionei*s  and  the 

(Mass.)  239;  Mclver  v.  Clarke,  69  Miss.  408,  10  South.  581.  Where 
however,  an  attorney  had  been  admitted  to  the  state  courts;  was 
entitled  to  admission  to  the  U.  S.  District  Court,  and  did,  in  fact, 
practice  therein  without  question,  he  may,  in  the  absence  ot  sta- 
tutory provision  or  rule  of  court,  prohibiting  it,  recover  for  serv- 
ices rendered  in  such  court,  thouj^h  never  formally  admitted  to 
practice  therein.     Harland  v.  Lilienthal,  53  N.  Y.  438. 

00  Mason  v.  Walkowich,  80  C.  C.  A.  435,  150  Fed.  099;  Copeland 
V.  Insurance  Co.,  6  Pick.  (Mass.)  198;  Commonwealth  v.  Commis- 
sioners, 9  Watts  (Pa.),  470. 

70  Salisbury  v.  Brisbane,  61  N.  Y.  617. 

71  Hawley  v.  Keeler,  53  N.  Y.  114;  Kiipper  v.  Augusta.  12  Mass. 
185;  Soons  v.  Racine,  10  Wis.  271;  U.  S.  Fidelity  &  Guaranty  Co. 
V.  Ettenheimer,  70  Neb.  147,  99  N.  W.  652. 

TzBrnnnan  v.  Wilson,  71  N.  Y.  502;  Patterson  v.  Leuvitt.  4 
Conn.  50,  10  Am.  Dec.  98;  Hartford  Ins.  Co.  v.  Wilcox,  57  111.  180. 


CAPACITY   OF   PARTIES.  27 

like,  majority  action  is  usually  surfieient,  provided  all  mem- 
bers had  notice  of  the  meeting  at  which  such  action  Avas 
taken  and  opportunity  to  attend  the  same.'^^  The  rule  was 
comprehensively  stated  as  follows,  in  an  early  IMassachu- 
setts  case  in  which  the  validity  of  an  assessment  was  ques- 
tioned because  made  by  only  two  of  three  assessors :  ' '  "Where 
a  body  or  board  of  officers  is  constituted  by  law  to  perform 
a  trust  for  the  public,  or  to  execute  a  power  or  perform  a 
duty  prescribed  by  law,  it  is  not  necessary  that  all  should 
concur  in  the  act  done.  The  act  of  the  majority  is  the  act 
of  the  body.  And  where  all  have  due  notice  of  the  time 
and  place  of  meeting,  in  the  manner  prescribed  by  law,  if 
so  prescribed,  or  by  the  rules  and  regulations  of  the  body 
itself,  if  there  be  any,  otherwise  if  reasonable  notice  is 
given,  and  no  practice  or  unfair  means  are  used  to  prevent 
all  from  attending  and  participating  in  the  proceeding,  it 
is  no  objection  that  all  the  members  do  not  attend,  if  there 
be  a  quorum.  In  the  present  case,  all  three  having  had  no- 
tice and  an  opportunity  to  act,  the  act  of  two  is  suffi- 
cient."'* 

73  First  Nat.  Bank  v.  Mt.  Tabor,  52  Vt.  87,  36  Am.  Rep.  734; 
Downing  v.  Rugar,  21  Wend.  (N.  Y.)  178,  34  Am.  Dec.  223;  Cooley 
V.  O'Connor,  12  Wall.  (U.  S.)  391;  Martin  v.  Lemon,  26  Conn.  192; 
People  V.  Nichols,  52  N.  Y.  478,  11  Am.  Rep.  734;  Louk  v.  Woods, 
15  111.  256;  Jefferson  County  v.  Slagle,  66  Pa.  St.  202. 

74  Williams  v.  School  District,  21  Pick.  (Mass.)  75,  32  Am.  Dec. 
243.  This  same  rule  is  usually  applicable  to  a  board  of  directors 
of  a  corporation.  Unless  otherwise  expressly  provided,  a  major- 
ity of  directors  constitutes  a  quorum,  and  by  majority  vote,  may 
bind  the  corporation.  McNeil  v.  Chamber  of  Commerce,  154  Mass. 
277,  28  N.  E.  245. 


CHAPTER  III. 
DELEGATION  OF  AUTHORITY— ILLEGALITY  OF  OBJECT. 

I.  Delegation  of  authority. 

§  29.  In  general. 

30.  Personal  acts. 

31.  Acts  required  by  statute  to  be  personally  performed, 

32.  Delegated  authority  can  not  be  delegated. 

33.  Appointment  of  subagents. 

34.  Implied  authority  to  appoint  subagents. 

35.  Ministerial  acts. 

36.  Implication  of  authority  from  nature  of  agency. 

37.  The  relation  of  the  parties. 

II.  Illegality  of  object. 

§  38.  In  general. 

39.  Appointment  to  do  illegal  acts. 

40.  Services  in  influencing  legislation. 

41.  Procuring  other  governmental  action. 

42.  Other  contracts  for  services  affecting  the  public 

43.  Services  contrary  to  fair  dealings. 

44.  Conditions  necessary  to  invalidate  contract. 

I.  Delegation  of  AutJiority. 

§  29.  In  general.  It  is  the  general  rule  that  whatever 
a  pei-son  may  do  hiinsclf  he  may  do  by  agent.  This  broad 
statement,  however,  must  be  qualified  by  at  least  two  im- 
portant exceptions.  Acts  essentially  of  a  personal  nature, 
or  tliose  which  are  required  by  statute  lo  be  personally  per- 
formed, can  not  be  delegated.  And  so,  authority  which  has 
been  conferred  upon  an  agent  can  not,  as  a  rule,  be  dele 
gated  by  liiin  to  a  subagciit. 


DELEGATION  OP  AUTHORITY — ILLEGALITY  OF   OBJECT.      29 

§  30.  Personal  acts.  A  few  acts,  from  tlieir  nature,  re- 
quire personal  performance.  A  man  could  not  do  homage 
by  attorney ;  *  enter  into  marriage  through  an  agent ;  or  au- 
thorize another  person  to  make  his  will.-  Political  rights 
and  duties,  such  as  the  right  to  vote,  or  to  fill  public  office, 
can  not,  of  course,  be  delegated ;  ^  and,  in  the  absence  of  au- 
thorization in  charter  or  by-law,  a  stockholder  of  a  corpora- 
tion can  not  vote  by  proxy.*  So,  where  powers  requiring 
the  exercise  of  discretion  and  judgment  are  conferred  upon 
an  individual,  he  can  not  delegate  their  performance  to  an- 
other.' Thus,  executors,  guardians  and  trustees  can  not 
delegate  their  trusts.' 

§  31.  Acts  required  by  statute  to  be  personally  per- 
formed. Where  rights,  duties  or  powers  are  of  statutory 
origin,  the  question  whether  they  can  be  delegated  must  find 

1  Combes'  Case,  9  Coke  75. 

2  Robins  V.  Coryell,  27  Barb.  (N.  Y.)  556;  Chafee  v.  Baptist 
Convention,  10  Paige  (N.  Y.),  85.  A  person,  however,  may  us- 
ually authorize  another  to  affix  his  signature  to  a  will  in  his  pre- 
sence. In  re  Mullen's  Estate,  110  Cal.  252,  42  Pac.  645;  McMechen 
V.  McMechen,  17  W.  Va.  683,  41  Am.  Rep.  682;  Page  on  "Wills,  §  174. 

3  Opinion  of  Judges,  41  N.  H.  550;  People  v.  Blodgett,  13  Mich. 
127;  Lewis  v.  Lewis,  9  Mo.  183,  43  Am.  Dec.  540;  Maxwell  v.  Bay 
City  Bridge  Co.,  41  Mich.  453;  Mechem  on  Public  Officers,  §  565 
et  seq.  Ministerial  duties  of  a  public  officer  may  be  performed 
by  a  deputy.    Abrams  v.  Ervin,  9  Iowa.  87. 

*  Taylor  v.  Griswold,  14  N.  J.  Law,  222,  27  Am.  Dec.  33. 

e  Singleton  v.  Scott,  11  Iowa,  589;  Coleman  v.  Beach,  97  N.  Y. 
545;  Litka  v.  Wilcox,  39  Mich.  94. 

«  White  V.  Davidson,  8  Md.  169,  63  Am.  Dec.  699;  Stoughton  v. 
Baker,  4  Mass.  522,  3  Am.  Dec.  236;  St.  Peter  v.  Denison,  58  N.  Y. 
421.  Where  a  discretionary  power  of  sale  is  given  an  executor, 
he  may  delegate  the  execution  and  delivery  of  the  deed  to  another, 
provided  the  negotiation  of  the  sale  and  the  agreement  to  all  its 
details  has  been  made  by  himself.  Smith  v.  Swan,  2  Tex.  Civ. 
App.  563,  22  S.  W.  247. 


30  THE   LAW   OP   AGENCY. 

answer  in  a  proper  construction  of  the  statute  creating 
tliem/  Thus,  where  an  act  for  the  licensing  of  vessels 
provided  for  an  oath  of  ownership  by  the  owner,  an  oath, 
in  his  behalf,  by  an  agent  was  held  insufficient ;  ®  and  when 
a  commissioner  to  take  acknowledgments  in  another  state- 
is  required  by  statute  to  file  an  impression  of  his  seal,  to- 
gether with  his  oath  of  office  and  signature,  the  implication 
is  clear  that  the  signature  must  be  in  the  proper  hand- 
writing of  such  commissioner."  So  generally,  in  the  case 
of  oaths,  and  where  the  clear  purpose  of  the  statute  is  to 
secure  the  personal  signature  of  a  party.^"  Under,  statutes 
empowering  a  married  woman  to  convey  her  land  by  joint 
deed  with  her  husband,  it  has  frequently  been  held  that  a 
conveyance  by  agent  was  invalid,  though  the  power  of  at- 
torney is  executed  by  husband  and  Avife  jointly  and  ac- 
knowledged in  the  manner  required  for  a  deed."     Such 

7  Sumner  v.  Conant,  10  Vt.  9;  Lewis  v.  Coxe,  5  Har.  (Del.)  401; 
Birdsall  v.  Clark,  73  N.  Y.  73,  29  Am.  Rep.  105.  Thus  under  an 
act  requiring  that  an  acknowledgment  of  a  debt,  in  order  to  take 
it  out  of  the  statute  of  limitations,  must  be  signed  by  the  parCy 
chargeable,  it  was  held  that  the  signature  must  be  personally  af- 
fixed; for  the  reason  that  the  act  in  question  was  one  of  a  series 
that  distinguished  between  a  signature  by  the  party  and  a  sig- 
nature by  agent.  Hyde  v.  Johnson,  2  Bing.  (N.  C.)  776  (Eng.); 
Swift  V.  Jewsbury,  L.  R.  9  Q.  B.  (Eng.)  301. 

8  United  States  v.  Bartlett.  Dav.  (U.  S.)  9,  Fed.  Cas.  No.  14,532. 
«  Finnegan  v.  Lucy,  157  Mass.  439,  32  N.  E.  656. 

10  Henshaw  v.  Foster,  9  Pick.  (Mass.)  312;  In  re  Mcllwaine,  18 
N.  J.  Eq.  499;  Dickson  v.  Morgan,  7  La.  Ann.  490.  Under  an  act 
providing  that  when  the  signature  of  a  person  is  required,  he 
must  write  it  or  make  his  mark,  a  return  of  a  constable  signed 
by  another,  though  In  his  presence  and  by  his  direction,  is  in 
sufTUiont.  Chapman  v.  Limerick,  56  Me.  390.  So,  the  power  to 
answer  interrogatories  under  oath  can  not  be  conferred  by  on 
person  on  another.     Dickson  v.  Morgan,  7  La.  Ann.  490. 

'■  Mott  V.  Smith,  16  Cal.  533;    Holland  v.  Moon,  39  Ark.  120 
McCreary  v.  McCorklp  (Tenn.  Ch.),  54  S.  W.  53. 


DELEGATION  OF   AUTHORITY — ILLEGALITY  OF   OBJECT.      31 

a  strict  construction  of  statutes  of  this  cliaracter,  however, 
is  not  approved  by  the  Supreme  Court  of  the  United  States. 
"Where  the  person  is  by  statute  allowed  to  do  the  princi- 
pal thing  directly,"  says  Mr.  Justice  Peckham,  in  a  recent 
Base,  * '  we  think  she  could  do  it  by  power  of  attorney.  The 
power  to  convey  includes  the  power  to  appoint  another  to 
do  the  same  thing.  We,  therefore,  agree  with  the  views 
expressed  by  some  of  the  text  writers ; — when  power  is  given 
by  statute  to  married  women  to  convey  their  interest  in  real 
estate,  where  their  husbands  join  in  the  conveyance  and 
where  the  private  examination  is  had,  that  in  such  eases  the 
right  of  the  wife  to  dispose  of  it  by  power  of  attorney, 
joined  in  by  her  husband,  and  where  she  was  privately  ex- 
amined, etc.,  would  naturally  be  implied."^-  So,  gener- 
ally, where  a  document  is  required  to  be  signed  by  a  person, 
the  signature,  in  the  absence  of  expression,  or  clear  impli- 
cation, to  the  contrary,  may  be  affixed  in  his  behalf  by  an 
agent. ^^ 

§  32.  Delegated  authority  can  not  be  delegated.  The 
doctrine  that  authoritj^  delegated  to  an  agent  can  not,  in 
turn,  be  delegated  by  him,  has  been  crystalized  into  a  legal 
maxim; — Delegatus  non  potest  delegare.  .The  reason  for 
the  rule  is  the  very  practical  one  that  a  person  naturally 
wishes  to  exercise  his  own  judgment  in  the  selection  of  an 
agent,  and  furthermore  that  a  man  can  not  be  obligated  by 
a  contract  of  agency  into  which  he  has  not  entered,  nor  be 
bound  by  the  acts  of  an  agent  whom  he  himself  did  not  ap- 

12  Williams  v.  Paine,  169  U.  S.  55. 

13  Sanborn  v.  Flagler,  9  Allen  (Mass.),  474;  Brayley  v.  Kelly. 
25  Minn.  IGO;  Wellington  v.  Jackson,  121  Mass.  157.  Signature  to 
a  will  or  deed  may  be  affixed  by  agent.  Lord  v.  Lord,  58  N.  H.  7 : 
Vernon  v.  Kirk,  3  OPa.  St.  218;   Burns  v.Lynde,  6  Allen  (Mass.), 

305;  Frott  v.  Deering,  21  Me.  156 


32  THE  LAW   OF   AGENCY. 

point,  or  to  Avhom  lie  gave  no  authority  to  represent  him.' ' 
Where,  however,  the  principal  expressly  authorizes  an  agent 
to  delegate  a  power  conferred,  or  where  such  authority  may 
reasonably  be  implied,  the  reason  for  the  rule  fails  and  the 
rule  itself  does  not  apply.^^ 

§  33.  Appointment  of  snbag-ent.  Tn  the  absence  of  ex- 
press or  implied  authority  to  do  so,  an  agent  has  no  power 
to  appoint  a  subagent.^®  Any  act,  therefore,  which  an 
agent,  without  authority,  causes  to  be  performed  by  a  third 
person  in  behalf  of  his  principal,  is  not  the  act  of  the  prin- 
cipal, and  is  in  no  way  binding  upon  him ;  ^^  nor  will  such 
appointment  of  a  subagent  create  any  legal  relation  be- 
tween him  and  the  principal.^®  Thus  where  goods  are  in- 
trusted to  a  factor  for  sale  and,  without  authority,  he  turns 
them  over  to  a  third  person  to  be  sold,  a  sale  by  the  latter 

14  Connor  v.  Parker,  114  Mass.  331;  Harralson  v.  Stein,  50  Ala. 
347;  Wright  v.  Boynton,  37  N.  H.  9,  72  Am.  Dec.  319.  If  a  man 
is  to  be  held  liable  for  the  acts  of  his  servants,  he  certainly  should 
have  the  exclusive  right  to  determine  who  they  should  be.  Hal- 
uptzok  V.  Railway  Co.,  55  Minn.  446,  57  N.  W.  144. 

15  Williams  v.  Woods,  IG  Md.  220;  Newell  v.  Smith,  40  Vt.  225; 
Weaver  v.  Carnall,  35  Ark.  198,  37  Am.  Rep.  22. 

18  Bond  v.  Hurd,  31  Mont.  314.  78  Pac.  579;  Ruthven  v.  Insur- 
ance Co..  92  Iowa.  316,  60  N.  W.  663;  Sayre  v.  Nichols,  7  Cal.  535, 
C8  Am.  Dec.  280;  Fairchild  v.  King.  102  Cal.  320.  36  Pac.  649.  One 
■who  has  a  bare  power  of  authority  from  another  to  do  any  act. 
must  execute  it  himself;  for  this  being  a  trust  or  confidence  re- 
posed in  him  personally,  it  cMniiot  be  assigned  to  one  whose  integ- 
I'ity  ()>•  ability  may  not  be  known  to  the  principal.  Wright  v. 
Boynlon,  37  N.  H.  9. 

iTCulllnan  v.  Bowker.  180  N.  Y.  93.  72  N.  E.  911;  Peterson  v. 
Christ ensen,  26  Minn.  377.  4  N.  W.  623;  Waldman  v.  Insurance 
Co..  91  Ala.  170,  8  South.  666;  Brewster  v.  Hobart.  15  Pick.  (Mass.) 
302. 

iH  Harnard  v.  Coffin,  141  Mass.  37,  6  N.  E.  :'.64 ;  California  Bank 
V.  We.Mtcrn  rninn  Tel.  Co.,  52  Cal.  280. 


DELEGATION  OF   AUTHORITY — ILLEGALITY  OF   OBJECT.      66 

would  be  invalid.^'  So,  a  person  authorized  to  sell  land 
can  not  delegate  the  performance  of  the  agency  to  another ;  -'^ 
and  an  agent  authorized  to  collect  and  receive  money  can 
not  delegate  the  authority  to  a  suhagent.-^  Where,  how- 
ever, a  principal  authorizes  the  appointment  of  a  subagent, 
he  thereby  confers  authority  upon  the  latter,  in  advance, 
to  represent  him,  and  consequently  will  be  bound  by  his 
acts.-^  And  authority  to  appoint  subagents  need  not  be 
expressly  given,  but  may  be  implied.^^ 

§  34,  Implied  authority  to  appoint  subagents.  Ordi- 
narily, an  agent  is  chosen  with  a  view  to  his  fitness  to  prop- 
erly perform  the  duties  of  the  agency,  depending  generally 
upon  his  possession  of  judgment,  honesty  and  skill.  Where, 
therefore,  the  nature  of  an  agency  is  such  that  performance 
of  all  its  duties  requires  an  exercise  of  these  personal  quali- 
fications, no  authority  will  be  implied  to  delegate  any  of 
them  to  a  subagent.^*  By  the  same  token,  however,  the  law 
assumes  that  a  principal  does  not  object  to  a  delegation  by 

10  Hunt  V.  Douglass,  22  Vt.  128;  Warner  v.  Martin,  11  How. 
(U.  S.)  209,  223. 

20  Tynan  v.  Dulling  (Tex.  Civ.  App.),  25  S.  W.  465;  Bocock  v. 
Pavey,  8  Ohio  St.  270. 

21  Lewis  V.  Ingersoll,  3  Abb.  Dec.  (N.  Y.)  50;  Fellows  v.  North- 
rup,  39  N.  Y.  117.  So  a  person  authorized  to  accept  bills  of  ex- 
change or  to  make  promissory  notes  can  not  delegate  this  author- 
ity to  another.    Commercial  Bank  v.  Norton,  1  Hill  (N.  Y.),  501. 

22  Wicks  V.  Hatch,  62  N.  Y.  535;  Emerson  v.  Providence  Hat 
Co.,  12  Mass.  237,  7  Am.  Dec.  66;  Blowers  v.  Southern  Railway- 
Co.,  74  S.  C.  221,  54  S.  E.  368. 

23Eldridge  v.  Holway,  18  111.  445;  Grady  v.  Insurance  Co.,  60 
Mo.  116;  Smith  v.  Sublett,  28  Tex.  163;  Arff  v.  Insurance  Co.,  125 
N.  Y.  57,  25  N.  E.  1073. 

24  Lynn  v.  Burgoyne,  52  Ky.  400;  Planters',  etc..  Bank  v.  First 
Nat.  Bank,  75  N.  C  534;  Lyon.  v.  Jerome,  26  Wend.  (N.  Y.)  485, 
37  Am.  Dec.  271;  Emerson  v.  Providence  Hat  Co.,  12  Mass.  237,  7 
Am.  Dec.  66. 


34  THE   LAW   OF   AGENCY". 

his  agent  of  minor  duties,  which  do  not  require,  in  their  per- 
formance, the  exercise  of  judgment  and  discretion.-^  And 
so,  the  nature  of  an  agency,  or  the  dealings  of  the  parties, 
may  be  such  as  reasonably  to  raise  an  implication  of  au- 
thority to  appoint  subagents  -° 

§  35.  Ministerial  acts.  In  the  absence  of  express  re- 
striction, an  agent  has  implied  authority  to  delegate  to  a 
subagent  performance  of  a  ministerial  act  which  does  n(3t 
require  the  exercise  of  discretion.^''  Thus,  an  agent  to  sell 
land  may  employ  another  to  exhibit  the  laud  to  prospective 
purchasers,-®  and  to  conclude  a  sale  upon  the  terms  fixed ;  -* 
an  agent  authorized  to  make  a  contract,  after  he  has  deter- 
mined the  provisions  thereof,  may  assign  to  another  the 
mechanical  task  of  reducing  the  contract  to  writing ;  ^°  so, 
an  insurance  agent  may  employ  clerks  to  deliver  poUcies 
and  collect  premiums.^^  And  generally,  an  agent  has  im- 
plied authority  to  delegate  the  performance  of  clerical  du 
ties  that  arise  in  connection  with  the  agency.*^ 

25  Williams  v.  Woods,  16  Md.  220;  Grinnell  v.  Buchannan,  1 
Daly  (N.  Y.),  538;  Joor  v.  Sullivan,    5  La.  Ann.  177. 

26McConnell  v.  McCormick,  12  Cal.  142;  Harris  v.  San  Diego 
Flume  Co.,  87  Cal.  52G,  25  Pac.  758;  Saveland  v.  Green,  40  Wis 
431. 

27  Grady  v.  American  Central  Ins.  Co.,  60  Mo.  116;  Weaver  v 
Carnall,  35  Ark.  198,  37  Am.  Rep.  22;  Sayre  v.  Nichols,  7  Cal.  535 
68  Am.  Dec.  280;  Newell  v.  Smith,  49  Vt.  255. 

2«  MfKinnon  v.  Vollmar,  75  Wis.  82,  43  N.  W.  800. 

20  Ronwiok  v.  Bancroft,  5G  Iowa,  527,  9  N.  W.  367. 

•'•o  Commercial  Bank  v.  Norton,  1  Hill  (N.  Y.),  501;  Sayre  v. 
Nlcliols,  7  Cal.  535,  68  Am.  Dec.  280. 

81  Arff  v.  Insurance  Co.,  125  N.  Y.  57,  25  N.  E.  1073. 

32  Norwlck  University  v.  Denny,  47  Vt.  13;  Cook  v.  Insurance 
Co.,  7  Daly  (N.  Y.),  555. 


DELEGATION   OF   AUTHORITY — ILLEGALITY  OF   OBJECT.      35 

§  36.  Implication  of  authority  from  nature  of  agency. 
Except  as  to  ministerial  acts,  authority  to  employ  subagents 
is  usually  not  implied  from  the  fact  of  the  existence  of  an 
agency.  The  nature  of  an  agency,  however,  or  the  circum- 
stances of  the  case,  may  be  such  as  reasonably  to  raise  an 
implication  of  such  authority.  The  controlling  factor  is 
the  intention  of  the  parties.  Thus,  if  from  previous  deal- 
ings of  a  like  nature,  the  principal  has  knowledge  that  it  is 
the  agent's  practice  to  avail  himself  of  the,  service  of  sub- 
agents,  an  unrestricted  appointment  implies  assent  to  tliat 
mode  of  performance.^^  So,  if  the  character  of  an  agency 
is  such  as  to  make  necessary  the  employment  of  assistants, 
authority  to  do  what  is  necessary  in  furtherance  of  the 
agency  will  be  implied  from  the  fact  of  its  creation.^* 
Hence  authority  to  prosecute  an  action  implies  authoriza- 
tion to  employ  an  attorney  to  conduct  the  case.^^  Where  a 
bank  is  authorized  to  collect  a  note,  it  has  implied  authority, 
if  necessary,  to  employ  a  notary  to  protest  it ;  ^^  and,  if  the 
note  is  payable  at  a  distant  place,  authority  to  employ  an 
agent  for  collection  at  the  place  of  payment  will  be  im- 
plied.^'^  So,  an  agent  appointed  to  manage  generally  the 
business  of  his  principal,  has  implied  authority  to  emplo\' 

33  Johnson  v.  Cunningham,  1  Ala.  249;  Loomis  v.  Simpson,  13 
Iowa,  532;  Warner  v.  Martin,  11  How.  (U.  S.)  223. 

34  Davis  V.  Matthews,  8  S.  D.  300,  66  N.  W.  456.  Authority  of 
an  agent  to  collect  a  debt  implies  authority  to  use  all  ordinary 
means  for  collection.  Ryan  v.  Tudor,  31  Kan.  366,  2  Pac.  797.  So 
a  stockbroker  has  implied  power  to  employ  a  subagent  where  the 
purchase  or  sale  is  to  be  made  in  a  distant  place.  Rosenstock  v. 
Tormey,  32  Md.  1G9. 

35  Buckland  v.  Conway,  16  Mass.  396. 

30  Warren  Bank  v.  Bank,  10  Cush.  (Mass.)  582;  Tiernan  v. 
Commercial  Bank,  7  How.   (Miss.)   648,  40  Am.  Dec.  83. 

87  Commercial  Bank  v.  Martin,  1  La.  Ann.  344,  45  Am.  Dec.  87; 
Dorchester,  etc..  Bank  v.  Bank,  1  Cush.    (Mass.)    177;    Appleton 


36  THE  LAW   OF   AGENCY 

such  assistants  as  may  be  reasonably  necessary  to  properly 
conduct  the  business.'®  "We  know  according  to  tbe  ordi- 
nary course  of  business,"  said  Earl,  J.,  in  a  leading  New 
York  case,  ''that  insurance  agents  frequently  have  clerks 
to  assist  them,  and  that  they  could  not  transact  their  busi- 
ness if  obliged  to  attend  to  all  the  details  in  person;  and 
these  clerks  can  bind  their  principal  in  any  way  of  business 
which  they  are  authorized  [by  the  agent]  to  transact.  The 
act  of  the  clerk  in  all  such  cases  is  the  act  of  the  agent,  and 
binds  the  company  just  as  effectually  as  if  done  by  the 
agent  in  person.  The  maxim  of  Delegatus  non  potest  dele- 
gare does  not  aj^ply  in  such  a  case."'* 

Following  the  same  principle,  if  it  is  a  well  established 
usage  of  the  business,  in  which  an  agent  is  engaged,  to  ap- 
point subagents,  a  principal  will  be  presumed  to  have  made 
the  appointment  v/itli  a  view  to  the  existence  of  such  usage ; 
and  in  the  absence  of  expression  to  the  contrary,  authority' 
to  appoint  subagents  will  be  implied.*"  Thus,  where  it  is 
the  usage  of  the  business  for  a  broker,  authorized  to  sell 
property,  to  employ  another  to  effect  a  sale,  authority  to  do 
so,  in  a  given  case,  is  implied  from  the  existence  of  such 
usage.*^  ' '  Business  to  an  immense  amount  has  been  trans- 
acted in  this  way,"  said  the  court  in  an  early  Pennsylvania 

Bank  v.  McGilvray,  4  Gray  (Mass.),  518,  64  Am.  Dec.  92;  Wilson 
V.  Bank,  187  111.  222,  58  N.  E.  250. 

ssMfConnell  v.  Mackin,  22  App.  Div.  537.  48  N.  Y.  Supp.  18; 
Arff  V.  Insurance  Co.,  125  N.  Y.  57,  25  N.  E.  1073. 

8»  Hodlne  V.  Insurance  Co.,  51  N.  Y.  117,  10  Am.  Rep.  5G6. 

10  Wilson  V.  Smith,  3  How.  (U.  S.)  763;  Darling  v.  Stanwood. 
14  Allen  (Mass.),  504;  Smith  v.  Sublett,  28  Tex.  163.  Such  au- 
thority, of  course,  will  not  be  Implied  if  the  usage  Is  contrary 
to  express  instructions  or  limitation  of  the  agent's  power.  Em- 
erson V.  Providence  Hat  Co.,  12  Mass.  237. 

<»  I.aiissatt  V.  Mi)iiincott,  G  Serg.  &  R.  (Pa.)  386,  9  Am.  Dec.  440. 


DEIiEGATION  OF  AUTHORITY — ILLEG.^ITY  OF   OBJECT.      37 

case,  "and  the  usage  being  established,  it  follows  that  when 
the  plaintiff  authorized  his  broker  to  sell,  he  authorized  him 
to  sell  according  to  the  usage;  and  when  the  defendants 
dealt  with  the  broker  they  had  a  right  to  consider  him  as  in- 
vested with  power  to  deal  according  to  usage. ' '  •*-  So,  au- 
thority to  employ  a  subagent  would  be  implied  where  unfore- 
seen emergencies  render  it  imperatively  necessary  to  do  so.*^ 
Thus,  upon  the  sudden  sickness  or  absence  of  a  brakeman, 
the  conductor  of  a  train,  if  an  emergency  exists,  would 
have  implied  authority  to  employ  a  temporary  substitute.** 

§  37.  The  relation  of  the  parties.  A  subagent,  whether 
appointed  in  pursuance  of  express  or  implied  authority,  be- 
comes so  far  as  third  parties,  with  whom  he  deals,  are  con- 
cerned, the  agent  of  the  principal,  who  is  bound  by  his  act.> 
and  contracts  within  the  scope  of  the  properly  delegated 
authority.*^  A  perfect  relation  of  agency,  however,  is  not 
alwaj'S  created  between  the  principal  and  subagent;  and 
in  some  cases  no  rights  or  obligations  arise  between  them.**' 
Thus  where  an  agent  undertakes  the  performance  of  a  par- 
ticular business,  such  as  the  sale  of  a  tract  of  land,  he  as- 
sumes a  position  somewhat  analogous  to  that  of  an  inde- 
pendent contractor,  in  so  far  as  he  has  implied  authority  to 
appoint  subagents — at  least  for  performance  of  ministerial 
acts — but  may  not,  ordinarily,  obligate  the  principal  for 

•42  Laussatt  v.  Lippincott,  supra. 

43  Story  on  Agency,  §  201;  Fox  v.  Railway  Co.,  86  Iowa,  368, 
53  N.  W.  259. 

44  Sloan  V.  Railway  Co.,  62  Iowa,  728,  16  N.  W.  331;  Georgia  Pac. 
Ry.  Co.  V.  Propst,  83  Ala.  518,  3  South.  764. 

45  Duluth  Nat.  Bank  v.  Fire  Ins.  Co.,  85  Tenn.  76,  4  Am.  St.  Rep. 
744;  Barnard  v.  Coffin,  141  Mass.  37,  6  N.  E.  364;  Exchange  Nat. 
Bank  v.  Bank,  112  U.  S.  276. 

46  Sexton  V.  Weaver,  141  Mass.  273;  Commercial  Bank  v.  Jones, 
18  Tex.  811;  Wyman  v.  Snyder,  112  111.  99. 1  N.  E.  469. 


38  THE  LAW   or   AGENCY. 

the  subagent's  compensation.^"  A  subagent,  in  siicli  a  case, 
becomes  in  reality  the  agent  of  the  original  attorney,  and 
to  him  he  must  look  for  compensation.  And  so,  the  origi 
nal  attorney  is  responsible  to  the  principal  for  misconduct 
or  default  of  the  subagent.**  In  many  instances,  of  course, 
there  may  be  direct  privity  of  contract  between  the  subagent 
and  the  principal.  "Whether  this  is  the  case,  must  be  de- 
termined from  the  nature  of  the  agency,  the  manner  of  ap- 
pointment, or  ultimately  from  the  intention  of  the  parties.*' 
Where  a  principal  expressly  authorizes  the  appointment  of 
a  subagent,  in  the  absence  of  stipulation  to  the  contrary, 
such  privity  of  contract  is  usually  held  to  exist.^°     But 

«  Russell  V.  Andrae,  79  Wis.  108,  48  N.  W.  117;  Rice  v.  Post, 
78  Hun  (N.  Y.),  547,  29  N.  Y.  Supp.  553.  Where  an  agent  having 
undertaken  the  performance  of  some  duty,  employs,  on  his  own 
account,  a  Subagent  to  assist  him,  the  subagent  must  look  to  his 
immediate  employer  for  compensation  and  not  to  the  principal 
Houston  County  Oil  Co.  v.  Bibby,  43  Tex.  Civ.  App.  100,  95  S.  W. 
562. 

^sTriplett  v.  Jackson,  130  Iowa,  408,  106  N.  W.  954;  St.  Louis 
etc.,  Ry.  Co.  v.  Smith,  48  Ark.  317,  3  S.  W.  364.  Where  a  subagent 
is  employed  with  the  assent,  or  by  the  direction,  of  the  principal, 
the  superior  agent  will  not  be  responsible  for  his  acts.  Thero 
is,  in  such  case,  privity  between  the  subagent  and  principal,  and 
the  latter  must  seek  a  remedy  directly  against  the  subagent  for 
his  negligence  or  misconduct.  Guelich  v.  Bank,  56  Iowa,  434,  9 
N.  W.  328. 

40  Exchange  Nat.  Bank  v.  Bank,  112  U.  S.  276;  Looniis  v.  Simp- 
son, 13  Iowa,  532;  National  S.  S.  Co.  v.  Sheahan,  122  N.  Y.  461,  2^ 
N.  E.  858;  Furnas  v.  Frankman,  6  Neb.  429;  Davis  v.  King,  66 
Conn.  465.  34  Atl.  107.  That  a  principal  recognized  a  subagent 
and  accei)ted  his  services  does  not  necessarily  prove  an  agree- 
ment to  pay  for  the  services.  Homan  v.  Brooklyn  Life  Ins.  Co.,  7 
Mo.  App.  22. 

60  Wicks  V.  Hatch,  62  N.  Y.  535;  Eastland  v.  Maney,  36  Tex.  Civ. 
App.  147,  81  S.  W.  574. 


DELEGATION  OP   AUTHORITY — ILLEGALITY  OF   OBJECT.      39 

where  authority  is  implied,  the  determination  is  more  diffi- 
cult. Thus  where  an  agent  is  authorized  to  collect  a  note 
at  a  distant  place,  he  has  implied  authority  to  send  the  note 
to  a  subagent  at  such  place  for  collection;  but  does  such 
subagent  become  the  agent  of  the  principal,  or  merely  the 
agent  of  the  original  attorney.  Some  of  the  cases  adopt 
the  former  alternative ;  hold  that  the  subagent  is  the  agent 
of  the  principal,  who  is  liable  for  his  compensation,  and 
that  the  original  attorney,  provided  he  used  reasonable  care 
in  the  selection,  is  not  responsible  to  the  principal  for  the 
subagent 's  default  or  misconduct. ^^  Other  cases  hold  the 
contrary;  deem  the  subagent  the  agent  of  the  original  ap- 
pointee, and  place  upon  the  latter  responsibility  for  the 
former 's  .acts  or  defaults."-  Under  either  holding,  payment 
by  the  debtor  to  the  subagent  is  deemed  payment  to  the 
principal. ^^ 

51  Dorchester,  etc.,  Bank  v.  Bank,  1  Cush.  (Mass.)  177;  Guelich 
V.  Bank.  56  Iowa,  434,  9  N.  W.  328;  Third  Nat.  Bank  v.  Bank,  61 
Miss.  112,  48  Am.  Rep.  78;  Stacy  v.  Banl?,  12  Wis.  G29;  Irwin  v. 
Reeves  Pulley  Co.,  20  Ind.  App.  101,  48  N.  E.  601;  Wilson  v.  Bank, 
187  111.  222,  58  N.  E.  250;  Citizens'  Bank  v.  Howell,  8  Md.  530,  63 
Am.  Dec.  714;  First  Nat.  Bank  v.  Sprague,  34  Neb.  318,  51  N.  W. 
846. 

.  ^'2  Exchange  Nat.  Bank  v.  Bank,  112  U.  S.  276;  Ayrault  v.  Bank, 
47  N.  Y.  570,  7  Am.  Rep.  489;  Simpson  v.  Waldby,  63  Mich.  439, 
30  N.  W.  199;  Streissguth  v.  Bank,  43  Minn.  50,  44  N.  W.  797; 
State  Bank  v.  Manufacturing  Co.,  17  Tex.  Civ.  App.  214,  42  S.  W. 
1016.  The  foundation  for  all  the  differences  of  opinion  among 
the  courts  appears  to  rest  in  the  interpretation  of  the  implied 
contract  between  the  depositor  and  the  bank  at  the- time  the  nego- 
tiable paper  is  deposited  for  collection.  Power  v.  Bank,  6  Mont. 
251,  12  Pac.  597. 

53  Dorchester  Bank  v.  Bank,  1  Cush.  (Mass.)  177;  Guelich  v. 
Bank,  56  Iowa,  434,  9  N.  W.  328;  Ante  §  33. 


40  THE  LAW   OP   AGENCY. 

II.  Illegality  of  Object. 

§  38.  In  general.  It  is  stated  as  the  rule  tliat  author- 
ity can  not  be  delegated  to  do  an  act  which  is  illegal,  im- 
moral or  opposed  to  public  policy.^*  "What  is  actually  done, 
however,  can  be  done.  Authority  to  do  wrongful  acts  is 
frequently  delegated,  and  the  principal,  who  authorized 
the  same,  is  responsible  for  them.^^  Thus  a  person  who  in- 
stigates the  commission  of  a  crime  is  criminally  responsible 
for  the  act ;  ^^  and  one  who  authorizes  a  tort  must  respond 
in  damages  for  the  injury  committed.^^  So,  a  person  may 
ratify  a  tortious  act  done  in  his  behalf,  without  authority. 
and  thus  assume  responsibility  for  the  same.^*  What  the 
rule  imder  discussion  means  is  that  where  the  purpose  of 

54  Mechem  on  Agency,  §  19. 

55  state  V.  Smith,  78  Me.  260,  4  Atl.  412;  Palmeri  v.  Railway  Co., 
133  N.  Y.  261,  30  N.  E.  1001;  Moir  v.  Hopkins,  16  111.  313,  63  Am. 
Dec.  312. 

86  Com.  V.  Nichols,  10  Mete.  (Mass.)  259.  43  Am.  Dec.  432; 
Barnes  v.  State,  19  Conn.  398;  Allyn  v.  State,  21  Neb.  593.  33  N. 
W.  212.  It  is  immaterial  that  the  criminal  act  is  done  through 
an  innocent  agent,  such  as  a  child  incapable  of  criminal  intent,  or 
a  grown  person  acting  through  mistake.  State  v.  Learnard,  41 
Vt.  585;  Gregory  v.  State,  26  Ohio  St.  510.  So  in  certain  statu- 
tory offenses,  such  as  opening  a  saloon  on  Sunday,  the  employer. 
though  innocent,  is  held  responsible  for  the  act  of  his  agent. 
People  V.  Roby,  52  Mich.  577,  18  N.  W.  365;  State  v.  McCance, 
110  Mo.  398,  19  S.  W.  648.  The  doctrine  involved  here  Is  really 
that  of  principal  and  accessory.     See  McClain,  Crim.  Law,  §  204 

57  Cooley  on  Torts,  Chap.  XVIII;  Maynard  v.  Fireman's  Fund 
Ins.  Co.,  34  Cal.  48,  91  Am.  Dec.  672;  Griswold  v.  Haven,  25  N.  Y 
595,  82  Am.  Dec.  380;  Hearns  v.  Waterbury  Hospital,  66  Conn 
98,  33  Atl.  595. 

B8  Morehouse  v.  Northrup,  33  Conn.  380.  89  Am.  Dec.  211;  Dun 
V.  Hartford,  off.,  Ry.  Co.,  43  Conn.  434;  Benton  v.  Beat  tie.  63  V 
186,  22  Atl.  422;   Brown  v.  Webster  City,  115  Iowa,  511,  88  N.  W 
1070.     In  ordor  fo  bind  the  al  sent  party  with  the  rommission  o*" 
a  trespass  there  must  be  eyidence  to  show  that  he  received  tho 


DELEGATION  OF   AUTHORITY— ILLEGALITY   OF   OBJECT.      41 

an  agency  is  illegal,  immoral  or  opposed  to  public  policy, 
the  contract  of  agency, — that  is,  the  contract  of  employ- 
ment between  principal  and  agent — is  invalid,  and  its  terms 
will  not  be  enforced  by  the  courts.^^  Thus  if  A  employs  B 
to  perpetrate  a  fraud  or  commit  an  assault  upon  C,  the 
agent,  though  he  performs  the  undertaking,  can  not  enforce 
his  contract  for  compensation;  nor  can  A,  the  principal, 
recover  damages  for  violation  of  instructions,  or  other 
breach  of  the  contract.  The  law  will  not  sanction  or  en- 
force a  contract  of  this  character.®"  C,  the  injured  party, 
however,  may  recover  damages  against  A  for  the  wrong 
which  he  instigated.®^  The  doctrine  with  which  we  are 
dealing  is  not  peculiar  to  the  law  of  agency.  It  is  merely 
a  doctrine  of  the  law  of  contracts  which  applies  to  a  contract 
of  agency.®-  It  is  the  rule,  then,  that  where  the  purpose 
of  an  agency,  or  other  employment,  is  illegal,  immoral  or 
opposed  to  fair  dealings  or  public  policy,  the  contract  of 
employment  will  not  be  sanctioned  by  the  law,  nor  its  terms 
enforced  by  process  of  the  courts.®^ 

benefits  thereof  with  guilty  Ivnowledge.  Holliday  v.  Jackson,  30 
Mo.  App.  263. 

59  Oscanyan  v.  Arms  Co.,  103  U.  S.  261;  Mohr  v.  Miessen,  47 
Minn.  228.  49  N.  W.  862. 

60  Evans  v.  Collier,  80  Ga.  130,  4  S.  E.  264;  Thomas  v.  Caulkett. 
57  Mich.  392,  24  N.  W.  154.  An  action  to  compel  an  agent  to  ren- 
der an  account  of  his  agency  in  buying  cotton  with  confederate 
obligations  given  him  by  the  principal  can  not  be  maintained. 
Wells  V.  Addison,  20  La.  Ann.  295. 

eiCcoley  on  Torts,  Chap.  V;  Moir  v.  Hopkins,  16  111.  313,  63 
Am.  Dec.  312;  Maier  v.  Randolph,  33  Kan.  340,  6  Pac.  625. 

62  Bishop  on  Contracts,  Chap.  XVIII;  Sandage  v.  Studebaker 
Bros.  Mfg.  Co.,  142  Ind.  148,  41  N.  E.  380. 

63  Rice  V.  Wood,  113  Mass.  133,  18  Am.  Rep.  459;  Elkhart  County 
Lodge  V.  Crary,  98  Ind.  238,  49  Am.  Rep.  746;  Crichfield  v.  Ber- 
mudez  Asphalt  Co.,  174  111.  466,  51  N.  E.  552. 


42  THE  LAW   OF   AGENCY. 

§  S9.  Appointment  to  do  illegal  acts.  It  follows  from 
the  doctrine  laid  down  in  the  preceding  section  that  the  ap- 
pointment of  an  agent  to  perform  an  undertaking  which  is 
contrary  to  law  would  be  invalid,  so  far,  at  least,  as  rights 
and  obligations  inter  se  are  concerned.  Thus,  an  agreement 
to  commit  murder,  arson  or  other  crime ;  ^*  to  sell  liquor  con- 
trary' to  the  statute ;  or  to  perpetrate  a  fraud  or  other  tort, 
would  be  invalid ;  ®^  as  would  an  undertaking  to  perform  an 
act  contrary  to  public  policy  or  fair  dealings,  such  as  im- 
properly influencing  governmental  action,^^  or  corrupting 
the  agent  of  another.^^ 

§  40.  Services  in  influencing  legislation.  It  is  of  para- 
mount importance  to  the  welfare  of  the  state  that  its  sources 
of  legislation  be  kept  pure,  and  that  all  governmental  action 
be  done  with  a  view  solely  to  the  common  weal.  Hence 
contracts  for  services  in  influencing  legislation  or  other  gov- 
ernineutal  action  are  void.''^     The  most  frequent  example 

«*  Atkins  V.  Johnson,  43  Vt.  78,  5  Am.  Rep.  260;  Jewett  Pub. 
Co.  V.  Butler,  159  Mass.  517,  34  N.  E.  1087. 

cr.  Bixby  V.  Moor,  51  N.  H.  402;  Kelly  v.  Scott,  49  N.  Y.  595; 
Gray  v.  McReynolds,  65  Iowa,  461,  21  N.  W.  777;  Fuller  v.  Rice. 
52  Mich.  435,  18  N.  W.  204.  Any  contract  made  in  furtherance  of 
a  business  carried  on  in  violation  of  the  public  policy  of  the 
state  is  void.  Thomas  v.  First  Nat.  Bank,  213  111.  2G1,  72  N.  E. 
801.  A  contract  for  the  commission  of  an  offense  which  is  malum 
prohibitum  is  unenforceable  just  as  if  the  offense  was  malum  in 
se.    Haggerty  v.  St.  Louis  Ice.  Mfg.  Co.,  143  Mo.  238,  44  S.  W.  1114. 

o<;Le  Tourneaux  v.  Gilliss,  1  Cal.  App.  546,  82  Pac.  627;  Howard 
V.  Murpby.  70  N.  J.  Law,  141.  56  Atl.  143. 

«7  Suiiiniors  v.  Carey,  09  App.  Div.  428,  74  N.  Y.  Siipp.  980;  Reod 
V.  Johnson,  27  Wash.  42,  07  Pac.  381;   Atlee  v.  Fink,  75  Mo.  100, 

43  Am.  Rep.  385. 

«8  Colusa  County  v.  Welch,  122  Cal.  428,  55  Pac.  243;  McDonald 
V.  Hurkslafr.  ."iC  Neb.  88,  76  N.  W.  476.  All  indirect  or  private 
methods  of  influencing  piibllc  officials  in  respect  to  public  business 


DELEGATION  OP  AUTHORITY — ILLEGALITY  OF   OBJECT.      43 

;)f  contracts  of  this  character  arc  those  providing  for  iob- 
i)ying  services.  The  law  views  such  contracts  with  gravest 
suspicion,  and  determines  their  validity  from  consideration 
of  tlieir  general  nature  and  natural  tendency  rather  than 
from  the  question  whether,  in  pursuance  of  their  terms, 
actual  wrong  was  done  or  event  contemplated.^®  Thus,  a 
contract  based  upon  the  consideration  that  one  of  the  par- 
ties would  give  all  aid  in  his  power,  and  use  his  influence, 
to  secure  the  passage  of  a  particular  law,  was  held  invalid ; 
for  the  reason  that  though  the  parties  did  not  necessarily 
stipulate  for  corrupt  action  or  intend  that  corrupt  means 
should  be  used,  yet  the  contract  tended  to  that  end  and  fur- 
nished a  temptation  to  resort  to  improper  devices  to  influ- 
ence legislation.''''  And  so,  an  agreement  to  prosecute  and 
superintend,  in  the  capacity  of  agent  and  attorney,  a  per- 
fectly legitimate  claim  before  the  legislature,  was  held  con- 
trary to  public  policy  and  void,  on  the  ground  that  a  person 
could  not  superintend  and  prosecute  such  a  claim  without 
resorting  to  personal  solicitation  with  the  members.'^ 

All  effort,  however,  to  procure  the  adoption  of  legislation 
is  not  necessarily  in  contravention  of  public  policy.  Thus 
a  person  might  present  a  petition  to  a  legislative  body,  sub- 
intrusted  to  them  are  immoral  and  against  public  policy,  and  con- 
tracts to  compensate  agents  or  attorneys  for  rendering  such  serv- 
ices will  not  be  enforced  by  the  courts.  Hayward  v.  Nordberg 
Mfg.  Co.,  29  C.  C.  A.  438,  85  Fed.  4. 

Gociippinger  v.  Hepbaugh,  5  Watts  &  Serg.  (Pa.)  315,  40  Am. 
Dec.  519;  Trist  v.  Child,  21  Wall.  (U.  S.)  441;  Powers  v.  Skinner, 
34  Vt.  274,  80  Am.  Dec.  677;   Hazelton  v.  Sheckels,  202  U.  S.  71. 

70  Mills  V.  Mills,  40  N.  Y.  543,  100  Am.  Dec.  535;  Owens  v.  Wil- 
kinson, 20  App.  (D.  C.)  51;  Veazey  v.  Allen,  173  N.  Y.  359,  66  N. 
E.  103. 

71  Bryan  v.  Reynolds,  5  Wis.  200,  68  Am.  Dec.  55;  Le  Tourneaux 
V.  Gilliss,  1  Cal.  App.  546,  82  Pac.  627;  Richardson  v.  Scotts  Bluff 
founty,  59  Neb.  400,  81  N.  W.  309. 


44  THE  LAW   OP   AGENCY. 

mit  facts  in  support  thereof,  and  appear  before  the-  proper 
committee  to  make  public  argument;  and,  by  the  same 
token,  might  employ  an  agent  to  perform  such  services. 
The  contract  of  employment  in  such  case  would  not  be  in- 
valid.'^ ''An  agreement  to  pay  for  such  service,"  said  the 
court  iu  an  early  Wisconsin  case,  "could  be  enforced;  be- 
cause a  public  discussion  could  not  tend  to  deceive  or  cor- 
rupt the  legislature;  while  personal  solicitation  and  influ- 
ence might  produce  that  result. ' '  '^  The  contract  of  em- 
ployment, however,  must  expressly  limit  the  services  to 
those  of  a  legitimate  character,  or  it  will  be  void,  even 
though  in  pursuance  of  it,  legitimate  services  only  were 
actually  rendered.'* 

§  41.  Procuring  other  govemmental  action.  Contracts 
for  services  in  influencing  action  by  departments  of  gov- 
ernment other  than  the  legislative,  or  by  officers  thereof, 
are  in  like  manner  contrary  to  public  policy  and  void.'^^ 
Hence  compensation  can  not  be  recovered  for  services  ren- 

72  Miles  V.  Thorne,  38  Cal.  335,  99  Am.  Dec.  384;  Sedgwick  v. 
Stanton,  14  N.  Y.  289;  Stroemer  v.  Van  Orsdel,  74  Neb.  132,  103 
N.  \y.  1053;  Dunham  v.  Hasting  Pavement  Co.,  57  App.  Div.  42(1. 
68  N.  Y.  Supp.  221;  Nutt  v.  Knut,  200  U.  S.  13,  26  Sup.  Ct.  216. 

73  Bryan  v.  Reynolds,  5  Wis.  200,  68  Am.  Dec.  55. 

74  Sweeney  v.  McLeod,  15  Ore.  330,  15  Pac.  275;  Spaulding  y. 
Ewing.  149  Pa.  St.  375,  24  Atl.  219;  Chippewa  Valley  Ry.  Co.  r. 
Chicago,  etc.,  Ry.  Co.,  75  Wis.  224,  44  N.  W.  17.  An  agreement  be- 
tween an  attorney  and  his  client  for  professional  services  to  be 
rendered  by  the  attorney  in  the  procurement  of  Congressional 
legislation,  which  involves  personal  solicitation  of  members  of 
Congress,  will  not  be  enforced  by  the  courts,  whether  improper 
means  are  used  or  not  In  such  solicitation.  Owens  v.  Wilkinson, 
20  App.   (D.  C.)   51. 

7B  Robison  v.  Patterson,  71  Mich.  141.  39  N.  W.  21;  Boyd  v.  Coch- 
rane, 18  Wash.  281,  51  Pac.  383. 


DELEGATION  OF  AUTllOHITY— LLLEGALITV   OF   OiiJECT.      45 

dered  in  improperly  securing  a  goveruinent  contract ;  '^ 
or  the  appointment  of  another  to  public  office/'^  And  so, 
where  owners  of  land  in  a  city  agreed  with  the  owner  of 
an  adjacent  building  that  if  he  would  offer  his  building  to 
the  government  for  use  as  a  post-office  for  a  nominal  rental 
for  a  stated  period,  and  use  all  proper  persuasion  to  secure 
its  acceptance,  they  would  pay  him  a  certain  sum  annually 
during  that  period,  in  case  the  government  accepted  the  of- 
fer, the  agreement  was  held  invalid,  and  recovery  according 
to  its  terms  was  not  allowed J^  '^It  is  clear,"  said  the 
court,  "that  a  contract  which  is  made  for  the  purpose  of 
securing  the  location  of  an  important  office,  connected  with 
the  public  service,  for  individua,!  b'enefit,  rather  than  for 
the  'public  good,  tends  to  the  injury  of  the  public  service. 
A  wholesome  rule  of  law"  is  that  parties  should  not  be  per- 
mitted to  make  contracts  which  are  likely  to  set  private  in- 
terests in  opposition  to  public  duty  or  to  the  public  wel- 
fare." '''  To  the  same  effect  is  the  reasoning  in  Providence 
Tool  Co.  V.  Norris,  where  an  agent  sued  for  compensation 
which  had  been  made  contingent  on  his  procuring  a  favor- 

76  Providence  Tool  Co.  v.  Norris,  2  Wall.  (U.  S.)  45;  Nash  v. 
Kerr  Murry  Mfg.  Co.,  19  Mo.  App.  1.  Employment  of  an  agent  to 
sell  goods  to  the  government  is  valid,  where  such  agent  was  not 
expected  to,  and  did  not,  resort  to  improper  methods.  Swift  v. 
Aspell  &  Co.,  82  N.  Y.  Supp.  659.  The  rule  under  discussion  ap- 
plies to  procurement  of  contracts  from  foreign  governments.  Os- 
canyan  v.  Winchester  Arms  Co.,  103  U.  S.  2G1. 

77Liness  v.  Hesing,  44  111.  113,  92  Am.  Dec.  153;  Edwards  v. 
Randle,  63  Ark.  318,  38  S.  W.  343;  Harris  v.  Chamberlain,  126 
Mich.  280,  85  N.  W.  728. 

78  Elkhart  County  Lodge  v.  Crary,  98  Ind.  238,  49  Am.  Rep.  746; 
Woodman  v.  Inness,  47  Kan.  26,  27  Pac.  125.  See  Fearnley  v.  De 
Mainville,  5  Colo.  App.  441,  39  Pac.  73,  in  which  the  rule  is  some- 
what relaxed. 

79  Ellvhart  County  Lodge  v.  Crary,  supra. 


4G  THE  LAW   OF   AGENCY. 

able  contract  for  muskets  from  the  government.  *'Tlie 
question,  then,  is  this,"  said  Mr.  Justice  Field,  in  deliver- 
ing the  opinion  of  the  court,  "can  an  agreement  for  com- 
pensation to  procure  a  contract  from  the  government  to 
furnish  its  supplies,  be  enforced  by  the  courts?  "We  have 
no  hesitation  in  answering  the  question  in  the  negative. 
All  contracts  for  supplies  should  be  made  with  those,  and 
those  onh',  who  will  execute  them  most  faithfully,  and  at 
the  least  expense  to  the  government.  .  .  .  Agreement.s 
like  the  one  under  consideration  tend  to  introduce  personal 
solicitation  and  personal  influence,  as  elements  in  the  pro- 
curement of  contracts,  and  thus  directl}'"  lead  to  inefficiency 
in  the  public  service  and  to  unnecessaiy  expenditures  of 
the  public  funds. ' '  ^° 

§  42.  Other  contracts  for  services  affecting:  the  public. 
A  contract  whereby  one  of  the  parties,  for  a  personal  con- 
sideration, agrees  to  use  all  of  his  influence  to  secure  the 
other's  election  to  a  public  office  is  invalid. ^^  "Its  tend- 
ency," said  the  court,  "is  to  corrupt  the  people  upon 
whose  integrity  and  intelligence  the  safety  of  the  state  do 
pends, — to  lead  voters  to  work  for  individual  interest ; 
rather  than  the  public  welfare."^-  So,  compens<ition  fov 
services  in  procuring  a  pardon  can  not  be  recovered,  wheir 
personal  influence  was  used;  '^"'  and  an  undertaking  to  sup- 
so  Providence  Tool  Co.  V.  Norris,  2  Wall.  (U.  S.)  45. 

81  Duke  V.  Asbee,  33  N.  C.  112;  Keating  v.  Hyde,  23  Mo.  Aiii> 
555;  Livingston  v.  Page,  74  Vt.  356,  52  Atl.  9G5.  A  contract  by  a 
nindidate  for  office  to  niipoint  a  certain  person  his  deputy,  if 
elected,  is  contrary  to  public  policy  and  void.  Conner  v.  Canter, 
15  Ind.  App.  690,  44  N.  E.  056. 

82  0a8ton  V.  Drake,  14  Nev.  175,  33  Am.  Rep.  r>iS;  Martin  V. 
Wade,  37  Cat.  168. 

««  Krihben   v.   TT;iyrraft,   26   Mo.   396;    Tiioni|)son   v.   Wharton,  7 


DELEGATION  OF   AUTHORITY — ILLEGALITY  OF   OBJECT.      47 

press  evidence ;  ^*  or  to  secure  dismissal  of  a  criminal  action, 
would  be  contrary  to  public  policy  and  void.^^ 

§  43,  Services  contrary  to  fair  dealings.  The  salutary 
doctrines  laid  down  in  the  preceding  sections  apply,  in  the 
main,  to  dealings  in  private  matters  between  private  indi- 
viduals.®^ Thus,  an  agreement  to  secure  for  another  a  po- 
sition of  trust  by  the  use  of  personal  or  sinister  influence 
would  be  invalid ;  *^  as  would  an  undertaking  to  secure  a 

Bush.  (Ky.)  563;  Brown  v.  Young,  7  Ky.  Law  Rep.  664;  Haines  v. 
Lewis,  54  Iowa  307,  6  N.  W.  495.  A  contract  with  an  attorney 
that  he  shall  endeavor  to  secure  a  pardon,  and  that  if  successful, 
a  stipulated  sum  shall  be  paid  for  his  services,  is  not  in  itself 
illegal.    Moyer  v.  Cantieny,  41  Minn.  242,  42  N.  W.  1060. 

8*Gillett  V.  Hoard  Sup'rs,  Logan  County,  67  111.  256;  Valentine 
v.  Stewart,  15  Cal.  387;  Crisup  v.  Grosslight,  79  Mich.  380,  44  N. 
W.  621.  So  a  contract  to  furnish  evidence  would  be  invalid.  Laf- 
fm  V.  Brillingtou,  86  N.  Y.  Supp.  267;  Cowles  v.  Rorhester  Box 
Co.,  179  N.  Y.  87,  71  N.  E.  468. 

85  Collier  v  Waugh,  64  Ind.  456;  Rhodes  v.  Neal,  64  Ga.  704,  37 
Am.  Rep.  93;  Onnerod  v.  Dearman,  100  Pa.  St.  561,  45  Am.  Rep. 
391;  Weber  v.  Shay,  56  Ohio  St.  116,  46  N.  E.  377.  No  action  will 
lie  for  compensat  on  for  services  in  endeavoring  to  prevent  an 
indictment,  and  after  its  finding,  to  induce  the  public  authorities 
to  dismiss  it.  Barron  v.  Tucker,  53  Vt.  388,  38  Am.  Rep.  684.  Re- 
laxation of  rule. — A  tendency  is  noticeable  in  some  of  the  recent  de- 
cisions to  relax  somewhat  the  strict  application  of  the  rules  gov- 
erning contracts  which  the  earlier  cases  hold  to  be  against  pub- 
lic policy.  Bergen  v.  Frisbie,  125  Cal.  168,  57  Pac.  784;  Mulligan 
v.  Smith,  32  Colo.  404,  76  Pac.  1063;  Fearnley  v.  DeMainville,  5. 
Colo.  App.  441,  39  Pac.  73;  Beal  v.  Polhemus,  67  Mich.  130,  34  N. 
W.  532. 

86  Smith  v.  Humphrey,  88  Me.  345,  34  Atl.  166;  Thomas  v.  Caul- 
kett,  57  Mich.  392,  24  N.  W.  154;  Hinnen  v.  Newman,  35  Kan.  709, 
12  Pac.  144;  McDonnell  v.  Rigney,  108  Mich.  276,  66  N.  W.  52. 
Thus  an  agreement  to  locate  a  railway  depot  at  a  particular  point 
has  been  held  invalid.  Marsh  v.  Fairbury,  64  111.  414;  Williamson 
V.  Chicago,  etc.,  Ry.  Co.    53  Iowa,  126.  4  N.  W   870. 

87  Woodruff  V.  Wentwcrth,  133  Mass.  309;  Noel  v.  Drake,  28  Kan. 


48  THE  LAW   OF   AGENCY. 

contract  Avith  a  private  person  or  institution  bj^  corrupting- 
one  of  its  agents.*^  And  where  a  real  estate  agent  induces 
his  principal  to  employ  a  lawyer  with  whom  he  has  an 
agreement  for  division  of  fees,  this  scheme  of  the  agent  is 
contrary  to  fair  and  open  dealings,  and  he  can  not  enforce 
his  agreement  with  the  lawyer  for  division  of  profits.^^  So. 
an  agreement  to  pay  compensation  for  effecting  a  marriage, 
would  be  contrary  to  public  policy  and  void ;  ^^  as  would  a 
contract  for  services  in  selling  tickets  in  a  forbidden  lot- 
tery; ^^  or  engaging  in  other  undertakings  contrary  to  law, 
such  as  gambling  in  stocks.®^ 

§  44.  Corditions  necessary  to  invalidate  contract.     An 

agent,  however,  may  recover  for  services  rendered,  wherf^ 
he  did  not  participate  in  the  unlawful  purpose  of  the  prin- 

265,  42  Am.  Rep.  1G2;  Porter  v.  Jones,  52  Mo.  399;  Aycock  v. 
Braun,  66  Tex.  201,  18  S.  W.  500. 

ssAtlee  V.  Fink,  75  Mo.  100,  43  Am.  Rep.  385;  Lum  v.  McEwen, 
56  Minn.  278,  57  N.  W.  662;  Smythe's  Estate  v.  Evans,  209  111. 
376,  70  N.  E.  906.  A  contract  between  a  real  estate  agent  acting 
for  the  vendor,  and  an  agent  acting  for  the  vendee,  to  share  the 
difference  between  tlie  price  paid  by  the  vendee  and  the  price 
received  by  the  vendor,  which  contract  is  unknown  to  the  vendee. 
is  unenforceable.  Howard  v.  Murphy,  70  N.  J.  Law  141,  56  Atl. 
143. 

80  Byrd  v.  Hughes,  84  111.  174,  25  Am.  Rep.  442. 

80  White  v.  Equitable  Nuptial  Ben.  Union,  76  Ala.  251,  52  Am. 
Rep.  325;  .Tohnson  v.  Hunt,  81  Ky.  321;  Morrison  v.  Rodgers,  115 
Cal.  252,  46  Pac.  1072.  A  promise  by  one  desirous  of  marrying  a 
certain  woman,  to  lay  a  person  if  he  would  give  the  woman  such 
Information  concerning  the  promisor  as  would  tend  to  induce  her. 
to  marry  him  can  not  be  enforced.  In  re  Grobe's  Estate,  127 
Iowa    121,  102  N.  W.  804. 

»i  Rolfe  v.  Delman,  7  Robt.   (N.  Y.)   SO. 

t»2  Lyon  V.  Cull)ertson,  83  111.  33,  25  Am.  Rep.  349;  Blgelow  v. 
Benedict,  70  N.  Y.  202,  26  Am.  Rep.  .573;  Stewart  v.  Schall,  65  Md. 
299,  57  Am.  Rep.  327;   Harvey  v.  Merrill,  150  Mass.  1.  22  N.  E.  49. 


DKL.EGATION  OP  AUTHORITY — ILLEGALITY  OF   OBJECT.      49 

cipal  and  had  no  knowledge  thereof.®^  TliiLs,  a  broker,  cm- 
ployed  to  bring  parties  together  to  contract,  is  not  pre- 
cluded from  recovery  of  his  commission  by  the  fact  that, 
without  his  participation,  they  enter  into  an  unlawful  con- 
tract.'* So,  where  an  agent  is  employed  to  perform  several 
distinct  services,  and  the  contract  of  employment  is  not  en- 
tire, he  may  recover  for  services  which  are  legitimate,  not- 
withstanding that  he  performed  others  which  were  con- 
trary to  public  policy  or  unlawful.®' 

»«Roundtre«  v.  Smith,  108  TJ.  S.  269;  Patrick  v.  Llttrell,  36 
Ohio  St.  79;  Tracy  T.  Talmadge,  14  N.  Y.  162,  67  Am.  Dec.  132. 

•*  Irwin  T.  Williar,  110  U.  S.  499. 

•«  Bishop  on  Contracts,  §  487;  Powers  v.  Skinner,  34  Vt  274,  80 
Am.  Dec.  677. 


CHAPTER  IV. 

APPOINTMENT  OP  AGENTS. 

S  45.  In  general. 

46.  Authority  to  execute  sealed  instruments. 

47.  Authority  to  fill  blanks. 

48.  Authority  to  execute  simple  contracts  required  to  be  !n 

writing. 

49.  Oral  appointment 

50.  Implied  appointment. 

(a)  In  general. 

(b)  Implication   from   circumstances. 

(c)  Implication  from  acts  or  conduct. 

(d)  Relation  of  parties. 

51.  Estoppel. 

52.  Acceptance  by  agent. 

§  45.  In  general.  As  has  been  already  indicated,*  the 
contract  upon  which  the  relation  of  principal  and  agent  is 
founded  may,  with  few  exceptions,  be  either  written  or 
verbal,  and,  as  in  the  case  of  other  contracts,  it  may  be  in- 
ferred from  acts  of  the  parties;  furthermore,,  a  person's 
conduct  may  have  been  such  as  to  estop  him  to  deny  the 
contract.  Reduced  to  more  specific  terms,  the  rule  is  that, 
except  where  by  positive  provision  of  law,  the  appointment 
of  an  agent  is  required  to  be  under  seal  or  in  writing,^  such 
appointment  may  be  either  written  or  verbal,^  or  may  be 
inferred   from  acts  or  circumstances.*     So,  if  a  person's 

'Ante  §  2. 
2  Post  §§  46,  48. 

•T  Ivong  V.  Colbum,  11  Mass.  97,  6  Am.  Dec.  160;   Fay  v.  Rich- 
mond, 43  Vt.  2.'3;  Klrklin  v.  Association,  107  Ga.  313,  33  S.  E.  83. 
«  Farmers',  etc.,  Hank  v.  Bank,  IG  N.  Y.  125,  69  Am.  Dec.  678; 


APPOINTMENT  OP  AGENTS.  51 

conduct  has  been  such  as  to  lead  third  parties  reasonably  to 
believe  that  another  has  authority  to  represent  him  as  agent, 
such  person  will  be  estopped  to  deny  the  existence  of  the 
relation." 

§  46.  Authority  to  execute  sealed  instruments.  Where 
a  contract  or  other  instrument  is  required  by  law  to  be  im- 
der  seal,®  the  rule  is  imperative  that  authority  to  executti 
such  an  instrument  in  behalf  of  another  must  be  conferred 
by  a  written  power  likewise  under  seal.'^  In  view  of  the 
importance  attached  by  common  law  to  the  formality  of  th(^ 
seal,  it  is  a  concession  to  permit  delegation  of  power  to  exe- 
cute an  instrument  of  this  character ;  and  it  is  not  surpris- 
ing that  the  concession  should  be  made  only  upon  condition 
that  such  authority  be  conferred  by  an  instrument  of  equal 
dignity  with  that  to  be  executed  by  the  agent.  Thus,  a 
power  of  attorney  to  convey  land  must  possess  the  same 
requisites  and  observe  the  same  solemnities  as  are  necessary 
in  a  deed  directly  conveying  the  same ;  ^  where  a  lease  for 
more  than  a  year  is,  by  statute,  required  to  be  by  deed,  an 
agent's  appointment  to  make  the  same  must  also  be  by 

Eagle  Bank  v.  Smith,  5  Conn.  71,  13  Am.  Dec.  37;  Matteson  v. 
Blackmer,  46  Mich.  393,  9  N.  W.  445;  Post  §  50. 

5  Martin  v.  Webb,  110  U.  S.  7;  Quinn  v.  Dresbach,  75  Cal.  159. 
16  Pac.  762;  Post  §  51. 

8  Bishop  on  Contracts,  Chap.  IV;  Lawson  on  Contracts,  Chap. 
III. 

T  Banorgee  v.  Hovey,  5  Mass.  11,  4  Am.  Dec.  17;  "Watson  v.  Sher- 
man, 84  111.  263;  Smith  v.  Dickinson,  25  Tenn.  (6  Humph.)  261, 
44  Am.  Dec.  306;  Cadell  v.  Allen,  99  N.  C.  542,  6  S.  E.  399. 

8  Clark  V.  Graham,  19  U.  S.  (6  Wheat.)  577;  Butterfield  v.  Beall, 
3  Ind.  203;  Peabody  v.  Hoard,  46  111.  242;  Elliott  v.  Stocks,  67 
Ala.  336;  Overman  v., Atkinson,  102  Ga.  750,  29  S.  E.  758.  Thus  a 
partner  could  not  bind  his  firm  by  deed  unless  authorized  under 
seal.    Harrison  v.  Jackson,  7  T.  R.  (Eng.)  207. 


52  THE  LAW  OF  AGENCY. 

deed ;  ®  and  if  an  indemnity  bond  is  required  by  law  to  be 
under  seal,  it  will  be  insufficient  where  executed  by  an  agent 
acting  under  authority  not  under  seal.^"  Where,  however, 
an  instrument  under  seal  is  executed  by  an  agent  in  the  pres- 
ence of  his  principal  and  by  his  direction,  the  rule  does  not 
apply."  Here,  the  execution  is  deemed  the  personal  act  of 
the  principal,  though  done  by  the  hand  of  another ;  and  in 
contemplation  of  law  there  has  been  no  delegation  of  au- 
thority.^^ A  sealed  instrument  executed  by  an  agent  under 
parol  authority  will  take  effect  as  a  simple  contract,  where 
the  seal  is  not  essential  to  the  validity  of  the  instrument.^^ 
So,  a  deed  of  conveyance,  ineffective  because  executed  by 
an  agent  under  parol  authority,  may  be  deemed  a  contract 
to  convey,  performance  of  which  will  be  enforced  in 
equity.^* 

«  Lobdell  V.  Mason,  71  Miss.  937,  15  South.  44. 

10  St.  Louis  Dairy  Co.  v.  Sauer,  16  Mo.  App.  1.  So,  authority 
to  release  a  debt,  evidenced  by  an  instrument  under  seal,  must 
be  given  by  a  power  under  seal.    Wheeler  v.  Nevins,  34  Me.  54. 

11  Croy  v.  Busenbark,  72  Ind.  48;  Videau  v.  Griffin,  21  Cal.  389; 
Meyer  v.  King,  29  La.  Ann.  567;  Eggleston  v.  Wagner,  46  Mich. 
610,  10  N.  W.  37. 

12  Gardner  v.  Gardner,  5  Cush.  (Mass.)  483,  52  Am.  Dec.  740. 
The  validity  of  the  deed  can  not  rest  upon  the  ground  of  agency 
If  such  were  the  case,  the  authority  would  have  to  be  by  instru- 
ment under  seal.    Clough  v.  Clough,  73  Me.  487,  40  Am.  Rep.  386. 

isworrall  v.  Munn,  5  N.  Y.  229,  55  Am.  Dec.  330;  Wagoner  v. 
Watts,  44  N.  J.  Law,  126;  Hammond  v.  Hannin,  21  Mich.  374,  4 
Am.  Rep.  490;  Shuetze  v.  Bailey,  40  Mo.  69;  Marshall  v.  Rugg,  6 
Wyo.  270,  44  Pac.  700. 

i<  Morrow  v.  Higglns,  29  Ala.  448;  Jones  v.  Marks,  47  Cal.  242; 
Hersey  v.  Lambert,  50  Minn.  373,  52  N.  W.  963;  Frost  v.  Wolf,  77 
Tex.  4r)T).  14  S.  W.  440.  Where  a  person  executed  a  deed,  leaving 
blanks  for  the  name  of  the  grantee  and  the  price,  and  gave  it  to 
an  agent,  with  instructions  to  fill  up  the  blanks  and  deliver  to  a 
purchaser,  the  instrument,  though  inoperative  as  a  deed,  because 
incomplete   when   signed    and    sealed,   could    be   enforced  by   the 


APPOINTMENT  OF  AGENTS.  53 

§  47.  Authority  to  fill  blanks.  Omission  of  a  material 
part  of  an  instrument,  such  as  the  designation  of  parties, 
or  a  description  of  subject  matter,  renders  the  same  in- 
operative ;  ^®  and  hence  authority  to  an  agent  to  supply 
such  omissions — thus  rendering  the  instrument  operative — 
is  equivalent  to  authority  to  execute  the  same.  It  follows, 
therefore,  that  authority  to  supply  material  omissions — to 
fill  blanks — in  an  instrument  under  seal  must,  like  author- 
ity to  execute  the  same,  be  conferred  by  a  power  likewise 
under  seal.^®  The  strict  application  of  this  rule  is  fre- 
quently avoided  by  invoking  the  doctrine  of  estoppel;  it 
being  held  that  where  a  grantor  signs  and  seals  a  deed, 
containing  unfilled  blanks,  and  gives  the  same  to  an  agent 
for  delivery,  with  parol  authority  to  fill  the  blanks,  he  will 
not  be  heard,  as  against  an  innocent  grantee,  to  question 
the  agent's  authority.^'  And  so,  many  courts,  though  rec- 
ognizing the  doctrine  that  authority  to  execute  a  sealed  in- 
strument must  be  given  under  seal,  repudiate  its  corollary, 
and  hold  that  parol  power  is  sufficient  to  authorize  the  fill- 
ing of  blanks  in  a  sealed  instrument.^* 

purchaser,  by  way  of  specific  performance,  as  a  contract  of  sale,  it 
having  been,  in  legal  effect,  signed  by  the  person  in  his  name  by 
his  lawfully  authorized  agent.  Blacknall  v.  Parish,  59  N.  C.  70, 
78  Am.  Dec.  239. 

1^'  Bishop  on  Contracts,  Chap.  XLIV. 

16  Preston  v.  Hull,  23  Gratt  (Va.)  600,  14  Am.  Rep.  153;  Wun- 
derlin  v.  Cadogan,  50  Cal.  613;  Burns  v.  Lynde,  6  Allen  (Mass.), 
305;  Adamson  v.  Hartman,  40  Ark.  58.  The  part  filled  in  must, 
of  course,  be  material,  for,  if  immaterial,  the  instrument  was  al- 
ready complete.     Vose  v.  Dolan,  108  Mass.  155. 

17  Phelps  V.  Sullivan,  140  Mass.  36,  2  N.  E.  121;  Field  v.  Stagg, 
52  Mo.  534,  14  Am.  Rep.  435;  Swartz  v.  Ballon,  47  Iowa,  188,  29 
Am.  Rep.  470;  Nelson  v.  McDonald,  80  Wis.  605,  50  N.  W.  893. 

18  State  V.  Young,  23  Minn.  551;  Van  Etta  v.  Evenson,  28  Wis. 
33,  9  Am.  Rep.  486;   Drury  v.  Foster,  2  Wall.    (U.  S.)   24;   South 


54  THE  LAW  OF  AGENCY. 

§  48.  Authority  to  execute  simple  contracts  required  to 
be  in  writing.  Many  simple  contracts  are  required  by 
statute  to  be  in  writing,  signed  by  the  parties  charged ;  ^* 
and  applying  the  theory  of  the  doctrine  applicable  to  sealed 
instruments,  it  might  seem,  at  first  blush,  that  authority  to 
execute  such  contracts  in  behalf  of  another  would  likewise 
have  to  be  written.  Such,  however,  is  not  the  rule.  In  the 
absence  of  statutorj^  provision  to  the  contrary,  authority  to 
execute  a  contract,  required  by  law  to  be  in  writing,  may 
be  conferred  upon  an  agent  orally,-"  or  may  even  be  im- 
plied.^^  Thus  an  agent  may  be  authorized  verbally  to  sign 
or  indorse  a  note  for  his  principal ;  --  to  make  a  written  con- 
tract for  the  sale  or  lease  of  land ;  ^^  and  authority  to  as- 
sign a  mortgage,  as  agent  for  another,  need  not  be  in  writ- 
Berwick  V.  Huntress,  53  Me.  89,  87  Am.  Dec.  535;  Garland  v.  Wells, 
15  Neb.  298,  18  N.  W.  132;  Palacios  v.  Brasher,  18  Colo.  593,  34 
Pac.  251;  Allen  v.  Withrow,  110  U.  S.  119.  Seals  have  been  abol- 
ished in  some  states,  and  their  significance  and  legal  effect  havp 
been  generally  modified  by  statute  or  judicial  decision.  See,  Bar- 
ton V.  Gray,  57  Mich.  634;  State  v.  Young,  23  Minn.  551. 

19  Bishop  on  Contracts,  Chap.  XLVIII.  At  common  law  con- 
tracts were  either  specialties  or  parol;  no  distinction  was  madi 
between  simple  written  and  oral  contracts,  both  were  parol  con- 
tracts. 

20  Webb  V.  Browning,  14  Mo.  354;  Dodge  v.  Hopkins,  14  "Wis 
f;30;  Barker  v.  Garvey,  83  111.  184;  Marshall  v.  Rugg,  6  Wyo.  270. 
44  Pac.  700. 

-ii  Trundy  v.  Farrar,  82  IW..  £,25;  McDonough  v.  Heyman,  38 
Mich.  334;  Hull  v.  Jones,  69  Mo.  587;  Shaw  v.  Hall,  134  Mass.  103. 

22  Bank  of  North  America  v.  Embury,  21  How.  Prac.  (N.  Y.) 
14;  Brown  v.  Bookstaver,  141  111.  461,  31  N.  B.  17.  An  act  re- 
qiiiiing  power  to  Indorse  a  note  to  be  express  and  special,  does  not 
TPfniirc  that  the  power  be  in  writing.  Peoples'  Bank  v.  Scal/o, 
127  .Mo.  164,  29  S.  W.  1032. 

23  Dodge  V.  Hopkins.  14  Wis.  630;  Wagoner  v.  Watts,  44  N.  .1 
r>aw,  12G;    Lake  v.  Campbell,  18  111.  106. 


APPOINTMENT  OF  AGENTS.  00 

ing.^*  The  provision  in  statutes  of  frauds,  requiring  that 
certain  agreements  be  signed  by  the  party  charged  "or 
some  other  person  thereunto  lawfully  authorized,"  does  not, 
by  implication,  require  that  such  other  person  be  authorized 
in  writing;  but  such  authority  may  be  orally  conferred.-^ 
"Where,  however,  the  statute  requires  that  authority  to  exe- 
cute a  contract  for  another — usually  contracts  for  sale  or 
lease  of  land — shall  be  written,  such  requirement  must,  of 
course,  be  complied  with ;  ^^  but  the  written  authority  in 
this  case  need  not  be  of  formal  character.^' 

§  49.  Oral  appointment.  AVhen  not  required  to  be  in 
writing,  under  the  rules  discussed  in  the  preceding  sections, 
appointment  of  an  agent  may,  of  course,  be  made  orally, 
and  any  form  of  expression  is  sufficient  which  indicates  an 
intention  to  confer  authority.^^     "An  agency  is  created — • 

2*  Moreland  v.  Houghton,  94  Mich.  548,  54  N.  W.  285. 

25  Hawkins  v.  Chace,  19  Pick.  (Mass.)  502;  Roehl  v.  Haumes- 
ser,  114  Ind.  311,  15  N.  E.  345;  Wiener  v.  Whipple,  53  Wis.  298, 
10  N.  W.  433.  A  different  construction  is  adopted  by  the  court 
in  Simpson  v.  Commonwealth,  89  Ky.  412,  12  S.  W.  630. 

seChappell  v..McKnight,  108  111.  570;  Gerhart  v.-  Peck,  42  Mo. 
App.  644;  Castner  v.  Richardson,  18  Colo.  496,  33  Pac.  163;  Hall 
V.  Wallace,  88  Cal.  434,  26  Pac.  360;  Frahm  v.  Metcalf,  75  Neb.  241, 
106  N.  W.  227;  Ramage  v.  Wilson,  37  Ind.  App.  532,  77  N.  E.  368. 
Such  provision  is  found  in  the  statutes  of  Alabama,  Arkansas, 
California,  Colorado,  Illinois,  Michigan,  Missouri,  Pennsylvania, 
and  a  number  of  other  states. 

27  Thus,  informal  authority,  as  directions  by  letter,  will  usually 
be  sufficient.  Smith  v.  Allen,  86  Mo.  178;  Lyon  v.  Pollock,  99  TI. 
S.  668.    See  Lambert  v.  Gerner,  142  Cal.  399,  76  Pac.  53. 

28  Geylin  v.  De  Villeroi,  2  Houst.  (Del.)  311.  If  one  acts  for 
and  in  behalf  of  another,  it  is  immaterial  to  the  question  of 
agency,  so  far  as  third  parties  are  concerned,  whether  he  acts  by 
his  direction  or  by  his  permission  merely.  Fay  v.  Richmond,  43 
Vt.  25. 


56  THE  LAW  OF  AGENCY. 

authority  is  actually  conferred — very  much  as  a  contract  is 
made,"  said  Taft,  J.,  in  Central  Trust  Co.  v.  Bridges,  "i.  e., 
by  an  agreement  between  principal  and  agent  that  such 
a  relation  shall  exist.  The  minds  of  the  parties  must  meet 
in  establishing  the  agency.  The  principal  must  intend  that 
the  agent  shall  act  for  him,  and  the  agent  must  intend  to 
accept  the  authority  and  act  on  it,  and  the  intention  of  the 
parties  must  find  expression  either  in  words  or  conduct  be- 
tween them. ' '  ^* 

§  50.  Implied  appointment,  (a)  In  g-eneral.  As  in  the 
case  of  contracts  generally,  the  existence  of  a  contract  of 
agency  may  be  implied  from  acts  or  circumstances,  or  from 
words  not  amounting  to  a  direct  expression  of  intention  to 
create  the  same.'"  "Where  circumstances,  or  a  person's 
acts,  words  or  conduct  are  such  as  reasonably  to  raise  an 
inference  of  intention  to  appoint  an  agent  and  to  confer 
particular  authority  upon  him,  the  law  gives  sanction  and 
force  to  such  inference,  and  holds  the  person  to  the  conse- 
quences of  his  intention  in  the  same  manner  as  though  it 
had  foimd  expression  in  written  or  spoken  word.'^  The 
intention  of  the  party  is  the  controlling  factor,  and  such 
intention  is  given  efTect  howsoever  it  may  find  expression. 
This  doctrine  is  applicable  to  the  contract  of  agency  itself, 
considered  merely  as  a  contract  of  employment ;  '^  but  its 

20  Central  Trust  Co.  v.  Bridges,  6  C.  C  A.  539,  57  Fed.  753. 

80  Van  Arman  v.  Byinston,  38  111.  443;  Hall  v.  Finch,  29  Wis. 
278,  9  Am.  Rep.  559;  McCrary  v.  Ruddick,  33  Iowa,  521;  Central 
Trust  Co.  V.  Bridges,  supra. 

31  Farmers  &  Mechanics  Bank  v.  Bank,  16  N.  Y.  125;  Kent  v. 
Tyson,  20  N.  H.  123;  Meader  v.  Page.  39  Vt.  306;  Matteson  v. 
Blackmer,  40  Mich.  393,  9  N.  W.  445;  Neibles  v.  Railway  Co.,  37 
Minn.  151.  33  N.  W.  322. 

8«Wood  V.  Brewer.  06  Ala.  570;  Weston  v.  Davis,  24  Me.  374; 


APPOINTMENT  OP  AGENTS.  57 

broader  application,  and  the  one  which  concerns  us  most, 
is  to  the  relation  of  agency  as  aifecting  the  rights  of  third 
parties  with  whom  the  agent  has  dealt  in  behalf  of  the 
principal. 

(b)  Implication  from  circumstances.  Authority  to  act 
as  agent  will  be  implied  where  the  circumstances  are  such 
as  to  indicate  an  intention  or  willingness  to  confer  the 
same.^^  Thus,  in  an  action  on  an  accident  policy,  where  it 
appeared  that  the  insured  was  injured  at  a  distance  from 
his  home,  was  utterly  helpless,  and  there  was  no  relative 
or  friend  near  him  but  his  brother,  who  was  caring  for  him ; 
it  was  held  that  authority  of  the  brother  to  act  for  him  in 
matters  relating  to  the  insurance  policy  could  be  implied- 
from  the  circumstances.^*  "In  many  cases,"  said  the 
court,  "the  existence  of  an  agency  may  be  implied  or  pre- 
sumed from  the  words  or  conduct  of  the  parties,  and  this, 
too,  although  the  creation  of  an  agency  was  not  within  their 
immediate  contemplation;  but  this  agency  is  to  be  limited 
in  its  scope  and  operation  to  the  reasonable  and  necessary 
requirements  of  the  case  which  calls  it  into  being.  "^^  On 
much  the  same  principle,  it  has  long  been  held  that  the 
master  of  a  ship  has  implied  authority,  in  face  of  sudden 
emergencies,  to  act  as  the  necessities  of  the  case  may  require, 

Millar  v.  Cuddy,  43  Mich.  273,  5  N.  W.  316;  Garfield  v.  Peerless  Car 
Co.,  189  Mass.  395,  75  N.  E.  695.  Thus,  where  a  person,  knowing 
that  services  are  being  performed  in  his  behalf,  remains  silent 
and  receives  the  benefits,  he  impliedly  consents  to  pay  for  them. 
Vilas  y.  Downer,  21  Vt.  419;  Weeks  v.  Holmes,  12  Cush.  (Mass.) 
215. 

33Lainhart  v.  Gabbard,  28  Ky.  Law  Rep.  105,  89  S.  W.  10; 
Schneider  v.  Schneider,  125  Iowa,  1,  98  N.  W.  159;  Hanscom  v 
Railway  Co.,  53  Minn.  119,  54  N.  W.  944. 

8*  Steanon  v.  Pacific  Mut.  Ins.  Co.,  83  Wis.  507,  53  N.  W.  878. 

35  Sheanon  v.  Pacific  Mut.  Ins.  Co.,  supra. 


58  THE  LAW  OF  AGENCY. 

though  in  so  doing,  he  exceeds  the  powers  that  have  been 
expressly  given  him.^^  Thus,  when  necessary  for  the  prose- 
cution of  a  voyage,  he  may  borrow  money  on  the  credit  of 
the  owner,  hypothecate  the  ship  or  cargo,  or  sell  a  part  of 
the  latter;  ^"  and,  in  the  opinion  of  Story,  may  even,  in  case 
of  absolute  necessity,  sell  both  the  ship  and  cargo.^^  "In 
the  circumstances  supposed  something  must  be  done, ' '  said 
the  court  in  a  leading  English  admiralty  case,  ''and  there 
is  nobody  present  who  has  authority  to  decide  what  is  to 
be  done.  The  master  is  invested  by  presumption  of  law 
with  authority  to  give  directions  on  this  ground  that  the 
owners  have  no  means  of  expressing  their  wishes. ' '  ^®  And, 
it  might  be  added,  in  view  of  the  fact  that  unforeseen  emer- 
gencies are  liable  at  any  time  to  arise,  authority  in  the 
agent  to  act,  in  face  of  emergencies,  for  the  best  interest  of 
the  principal  may  reasonably  be  implied  from  the  very  fact 
of  his  appointment.  So,  where  an  employee  of  a  railway 
company  is  injured  in  the  performance  of  his  duties,  it  has 
been  held  that  a  conductor,  station  master  or  other  agent 
has  implied  authority  to  employ  a  surgeon  to  attend  the  in- 
jured man.*"     Implied  agencies  of  the  character  under  dis- 

3c  Stearns  v.  Doe,  12  Gray  (Mass.),  482,  74  Am.  Dec.  608;  Pike 
V.  Balch,  38  Me.  302,  61  Am.  Dec.  248. 

37  McCready  v.  Thorn,  51  N.  Y.  454;  Pratt  v.  Reed,  19  How.  (U. 
S.)  359;  Gordon  v.  Insurance  Co.,  2  Pick.  (Mass.)  249. 

88  He  may,  under  circumstances  of  great  emergency,  acquire  a 
superinduced  authority  to  dispose  of  it,  from  the  very  nature  and 
necessity  of  the  case.  The  character  of  agent  is  forced  upon  him, 
not  by  immediate  act  or  appointment  of  the  owner,  but  by  the 
general  policy  of  the  law.    Story  on  Agency,  §  118. 

30  The  Hamburgh,  Br.  &  L.,  (Eng.)  253. 

"Cincinnati,  etc.,  Ry.  Co.  v.  Davis,  126  Ind.  99,  25  N.  E.  878; 
Terre  Haute,  etc.,  Ry.  Co  v.  McMurray,  98  Ind.  358,  49  Am.  Rep. 
752;  Toledo,  etc.,  Ry.  Co.  v.  Mylott,  6  Ind.  App.  438,  33  N.  E.  135; 
ArkanBas,  etc.,  Ry.  Co.  v.  I^oughridge,  65  Ark.  907,  45  S.  W.  907. 


APPOINTMENT  OP  AGENTS.  59 

eussion  arc  sometimes  designated  agencies  of  necessity,  and 
will  be  deemed  to  have  arisen  only  in  exceptional  cases. 
Thus,  some  of  the  courts  hold  that  conductors  or  other  sub- 
ordinate agents  of  a  railway  company  have  no  implied  au- 
thority, under  any  circumstances,  to  employ  a  physician 
to  attend  one  of  its  servants  injured  by  its  cars.*^ 

(c)  Implication  from  act  or  conduct.  Implication  of 
authority  more  usually  arises  from  some  act  or  conduct  of 
the  person  sought  to  be  bound.*^  Thus,  where  one,  pur- 
porting to  act  as  agent  for  another,  repeatedly  performs 
acts  which  have  not  been  authorized,  but  the  principal  ac- 
(luiesces  in  their  performance,  his  conduct  naturally  gives 
rise  to  the  inference  that  he  wishes  the  agent  to  perform 
other  acts  of  the  same  kind ;  and  hence  may  be  deemed  evi- 
dence of  intention  to  vest  the  agent  with  requisite  author- 
ity.*'    So,  one  who  permits  another  to  make  collections  for 

Bigham  v.  Railway  Co.,  79  Iowa,  534,  44  N.  W.  805.  The  rule  has 
been  held  not  to  extend  to  the  case  of  passengers  or  trespassers. 
Union  Pac.  Ry.  Co.  v.  Beatty,  35  Kan.  268,  10  Pac.  845;  Wills  v. 
International,  etc.,  Ry.  Co.,  41  Tex.  App.  58,  92  S.  W.  273. 

*i  Marquette,  etc.,  Ry.  Co.  v.  Taft,  28  Mich.  289;  Tucker  v.  Rail- 
way Co.,  54  Mo.  177. 

42  Kent  V.  Tyson,  20  N.  H.  121;  Anderson  v.  Supreme  Council, 
135  N.  Y.  107,  31  N.  E.  1092;  Columbia  Mill  Co.  v.  Bank,  52  Minn. 
224,  53  N.  W.  1061;  Gibson  v.  Snow  Hardware  Co.,  94  Ala.  346, 
10  South.  304. 

<?  Reynolds  v.  Collins,  78  Ala.  94;  Farmers  &  Mechanics  Bank 
V.  Bank,  16  N.  Y.  125.  69  Am.  Dec.  678;  Thompson  v.  Clay,  60 
Mich.  627,  27  N.  W.  699;  Wheeler  v.  Benton,  67  Minn.  293,  69  N. 
W.  927;  Neibles  v.  Railway  Co.,  37  Minn.  151,  33  N.  W.  322. 
Where  the  evidence  shows  that  a  man's  son  had  authority  to  sell 
specific  property,  such  authority  may  be  presumed  to  continue  for 
a  reasonable  time.  Hensel  v.  Maas,  94  Mich.  563,  54  N.  W.  381. 
But  authority  to  buy  lumber  one  year  does  not  imply  existence  of 
like  authority  the  following  year.  Green  v.  Hinkley,  52  Iowa, 
'';33,  3  N.  W.  688 


€0  THE  LAW  OP  AGENCY. 

him  is  bound  by  the  payments.**  Where  a  son  had  for  years 
been  signing  his  father's  name  to  notes,  with  the  latter 's 
knowledge  and  acquiescence,  his  authority  to  bind  the 
father  will  be  inferred.*'  And  where  a  young  man  had 
been  employed  in  a  store,  and  during  his  employment  gave 
orders  for  goods,  corresponded  with  reference  to  the  same, 
received  payment  for  goods  sold,  and  the  like,  of  all  of  which 
the  owner  had  presumptive  knowledge,  the  latter  will  be 
liable  for  goods  ordered  by  such  clerk,  suited  to  the  business, 
though  he  received  the  same  and  converted  them  to  his  own 
use.*^  "He  was  suffered  to  act  as  general  agent,"  said  the 
court,  ''both  in  bujnng  and  selling,  and  the  public  was, 
therefore,  justified  in  assuming  that  he  possessed  all  the 
powers  requisite  to  a  general  agent  in  buying  and  sell- 
ing."*^ A  railway  company  which,  with  knowledge,  al- 
lows a  person  to  rent  an  office  on  its  right  of  way  and  post 
a  sign,  styling  it  the  office  of  the  company,  is  liable  for  ties 
purchased  by  such  person  in  its  name.**  "Where  a  man  in 
charge  of  a  warehouse  purchases  grain  and  ships  it  in  the 
name  of  the  owner  of  such  warehouse,  who  advances  money 
to  him  on  such  shipments,  it  may  be  inferred  that  the  per- 
son who  purchased  the  grain  is  agent  of  the  person  in  whose 
name  it  is  shipped,  and  the  latter  is  liable  for  the  grain  so 
purchased.**  And  so,  generally,  where  a  person,  for  a  con- 
siderable time,  has  acted  as  agent  for  another  in  settling 
obligations  and  the  like,  that  fact  will  be  sufficient,  prima 

<■»  Sax  V.  Drake,  C9  Iowa,  7C0,  28  N.  W.  423;  Quinn  v.  Dresbach. 
75  Cal.  159,  16  Pac.  762. 

"  Matteson  v.  Blackmer,  46  Mich.  393,  22  N.  W.  253. 

^n  Thuiber  V.  Anderson,  88  111.  167;  Eisner  v.  State.  30  Tex.  524; 
Eagle  Bank  v.  Smitli.  5  Conn.  71,  13  Am.  Dec.  37. 

•*TThnrber  v.  Anderson,  supra. 

<8  Florida,  etc.,  Ry.  Co.  v.  Barnedoe,  81  Ga.  175,  7  S.  E.  129. 

"Malbum  v.  Srhreinor,  49  111.  G9 


ArPOINTMENT  OF  AGENTS.  61 

facie,  to  establish  his  agency.''"  "From  the  natural  im- 
probability," said  the  court,  ''that  one  should  voluntarily, 
without  authority,  assume  to  act  for  another,  settling  his 
obligations  for  a  considerable  period  of  time,  and  from  the 
fact  that  such  conduct  would  naturally  come  to  the  knowl- 
edge of  the  assumed  principal,  the  fact  of  agency  may  be 
presumed."  ^^ 

Authority,  however,  to  act  for  another  will  not  be  im- 
plied unless  the  latter 's  conduct  has  been  such  as  reason- 
ably to  raise  such  implication.^^  The  question  really  is 
one  of  fact, — the  intention  of  the  party  as  evidenced  by  his 
conduct.  Thus,  the  fact  that  one  of  the  creditors  of  a  cor- 
poration, after  it  became  insolvent,  furnished  it  means 
with  which  to  carry  on  its  business,  does  not,  in  an  action 
against  him  for  materials  furnished  the  corporation,  war- 
rant a  finding  that  he  was  the  principal  of  the  corporation, 
and  liable  for  the  price  of  the  materials.^^  Nor  will  the 
fact  that  a  note  is  left  with  a  person  for  convenience  of 
all  parties  signing  it,  make  such  person  agent  of  the  payee 
in  procuring  the  signatures,  so  as  to  bind  the  payee  by  his 
statements.^*     So,  possession  of  an  unindorsed  bill  of  lad- 

60  Neibles  v.  Minneapolis,  etc.,  Ry.  Co.,  37  Minn.  151,  33  N.  W. 
322;  Singer  Mfg.  Co.  v.  Holdfodt,  86  111.  455,  29  Am.  Rep.  43; 
Summerville  v.  Hannibal,  etc.,  Ry.  Co.,  62  Mo.  391;  Baker  v.  Kan- 
sas City,  etc.,  Ry.  Co.,  91  Mo.  79,  3  S.  W.  486. 

61  Neibles  v.  Railway,  supra. 

52  Watson  V.  Race,  46  Mo.  App.  546;  McNamara  v.  McNamara, 
62  Ga.  200;  Clark  v.  Dillman,  108  Mich.  625,  66  N.  W.  570;  Tenn- 
essee River  Transp.  Co.  v.  Kavanaugh,  101  Ala.  1,  13  South.  283 
Evidence  that  one  acted  as  agent  for  another  in  a  single  trans- 
action will  not  raise  a  presumption  of  authority  to  act  in  a  dif- 
ferent transaction,  especially  at  a  different  time.  Bartley  v. 
Rhodes  (Tex.  Civ.  App.),  33  S.  W,  604. 

53  Perkins  v.  Hunington,  64  Hun,  635.  19  N.  Y.  Supp.  71. 
"Warburton  v.  Ralph,  9  Wash.  537,  38  Pac.  140. 


62  THE  LAW  OP  AGENCY. 

ing  by  a  person  does  not  raise  a  presumption  that  he  is 
agent  of  the  consignor.^^  Mere  possession  of  a  copy  of  an 
account  does  not  imply  authority  to  collect  the  same.^" 
And  authority  will  not  be  implied  from  the  fact  of  previous 
service,  where  it  does  not  appear  that  the  principal  had 
knowledge  of  the  same,  though  he  may  have  accepted  its 
benefits.^^ 

(d)  Relation  of  parties.  The  existence  of  relationship 
between  the  parties,  such  as  that  of  husband  and  wife,  or 
parent  and  child,  does  not  raise  an  implication  of  authority 
in  one  to  represent  the  other.^^  Thus,  in  the  absence  of 
proof  that  a  father  was  authorized  to  act  for  his  daughter 
as  her  agent  to  employ  a  broker  to  sell  her  real  estate,  the 
relationship  is  not  a  ground  upon  which  the  agency  can  be 
assumed.^^  So,  a  wife  has  no  implied  authority  to  draw  her 
husband 's  money  from  a  savings  bank ;  '^°  and  a  sale  by  her 
of  the  husband's  property,  though  a  chattel  for  domestic 
use,  such  as  a  sewing  machine,  would,  unless  authorized  by 
him,  be  invalid.*^  The  rule  would  be  the  same  where  the 
husband,  without  authority,  undertakes  to  act  in  behalf  of 

C5  Stewart  v.  Gregory,  9  N.  D.  618,  84  N.  W.  553.  Delivery  of  a 
subscription  paper  to  a  person  will  not  of  itself  raise  an  implica- 
tion of  authority  in  him  to  collect  the  subscriptions.  Pease  v. 
Warren,  29  Mich.  9. 

60  Butcher  v.  Beckwith,  45  111.  460,  92  Am.  Dec.  232. 

67  Cobb  V.  Hall,  49  Iowa,  3C6. 

68Cowell  V.  Dasf^ett,  97  Mass.  434;  Morrison  v.  Holt,  42  N.  H. 
478,  80  Am.  Dec.  120;  Sanders  v.  Brown,  145  Ala.  665,  39  South. 
732;  Francis  v.  Reeves,  137  N.  C.  269,  49  S.  E.  213.  The  husband 
of  a  woman  capable  of  consenting  has  no  authority  in  law  to  au 
thori'/.e  performance  upon  her  of  a  surgical  operation.  Pratt  v. 
Davis,  118  111.  App.  161. 

60  Le  Count  v.  Oropnloy,  6  N.  Y.  St.  Rop.  91. 

eo  Allen  v.  Wmiamsl)urg  Sav.  Bank,  69  N.  Y.  314. 

«i  WTieeler  &  Wilson  Mfg.  Co.  v.  Morgan,  29  Kan.  371. 


APPOINTMENT  OF  AGENTS.  63 

his  wife."-  The  existence  of  such  relationship  may,  of 
course,  be  taken  into  account  in  determining  whether  au- 
thority has  been  conferred.  Acts  or  circumstances  which 
might  be  insufficient  to  raise  an  implication  of  authority 
where  the  parties  are  strangers,  would  often  prove  sufficient 
in  view  of  their  close  relationship.®^  "The  husband,"  says 
a  learned  author,  ''is  bound  to  fulfill  the  contract  of  his 
wife,  when  it  is  such  a  one  as  wives,  according  to  the  usage 
of  the  country,  commonly  make.  If  a  wife  would  purchase, 
at  a  merchant's  store,  such  articles  as  wives  in  her  rank  of 
life  usually  purchase,  the  husband  ought  to  be  bound,  for 
it  is  a  fair  presumption  that  she  was  authorized  to  do  so  by 
her  husband.  If,  however,  she  were  to  purchase  a  ship  or 
a  yoke  of  oxen,  no  such  presumption  would  arise,  for  wives 
do  not  usually  purchase  ships  or  oxen."®*  But,  though 
the  wife  may  have  implied  authority  to  pledge  her  hus- 
band's credit  for  ordinary  household  expenses,  such  au- 
thority would  usually  not  extend  to  the  purchase  by  her 
of  expensive  jewelry ;  ®^  and,  so,  it  has  been  held  that  a 
wife  has  no  implied  authority  to  bind  her  husband  for  medi- 
cal treatment  of  his  farm  hands.®' 

§  51.  Estoppel.  It  is  the  equitable  doctrine  of  estoppel 
that  where  a  person  by  words  or  conduct  leads  another 
reasonably  to  believe  that  a  certain  state  of  facts  exists, 
and  to  act  upon  that  belief,  he  will  not  subsequently  be 

62  Ayres  v.  Probasco,  14  Kan.  141. 

63  Gates  V.  Brower,  9  N.  Y.  205,  59  Am.  Dec.  530;  Dean  v.  Shreve. 
155  111.  650,  40  N.  E.  294;  Graff  v.  Callahan,  158  Pa.  St.  380,  27 
Atl.  1009;  Feiner  v.  Boynton,  73  N.  J.  Law,  136,  62  Atl.  420. 

64  Reeve  on  Domestic  Relations,  p.  79;  Benjamin  v.  Benjamin. 
15  Conn.  347,  39  Am.  Dec.  384. 

«6  Bergh  v.  Warner,  47  Minn.  250,  50  N.  W.  77. 
66  Baker  v.  Witten,  1  Okl.  160,  30  Pac.  491. 


64  THE  LAW  OF  AGENCY. 

permitted,  as  against  sneh  other  person,  to  deny  that  such 
state  of  facts  actually  did  exist.*''  This  doctrine  of  estoppel 
is  incorporated  into  the  law  of  agency,  and  hence  it  is  the 
rule  that,  though  one  can  not  become  the  agent  of  another 
without  that  other's  assent,  yet  if  a  person  by  his  con- 
duct— acts,  language  or  silen(ie — knowingly  or  negligently 
leads  third  parties  reasonably  to  believe  that  another  has 
authority  to  represent  him,  and  they  act  upon  that  belief, 
such  person,  as  against  them,  will  be  estopped  to  deny  the 
authority  of  the  agent  within  the  scope  of  the  employment 
which  was  represented  to  exist.*'*  Thus,  if  a  merchant  has 
knowledge  that  his  cashier,  without  authority,  is  in  the 
habit  of  indorsing  and  collecting  checks  from  a  bank,  but 
neglects  to  notify  the  bank  of  the  want  of  authority,  he 
will  be  estopped  to  deny  the  same.^^  And,  where  one  ac- 
quiesces in  the  use  of  his  name  by  another  in  carrying  on 
business,  places  another  upon  his  premises  in  apparent 
charge  of  the  business  usually  conducted  there,  or  stands 
by  and  permits  another  to  act  or  contract  in  his  name,  he 
will  not  be  heard,  as  against  parties  misled  by  his  conduct, 
to  deny  the  apparent  authorit}^  of  the  supposed  agent.'* 

67  Pomeroy  on  Equity,  §  801  et  seq. 

68  Kirk  V.  Hamilton,  102  U.  S.  68;  Johnson  v.  Hurley,  115  Mo. 
513,  22  S.  W.  492;  Jordon  v.  Greig,  33  Colo.  360,  80  Pac.  1045;  Mt. 
Morris  Bank  v.  Gorhaui,  169  Mass.  519,  48  N.  E.  341.  The  person 
relying  on  the  apparent  authority  of  the  agent  must  use  reason- 
able care  to  ascertain  the  facts.  Ladd  v.  Grand  Isle,  67  Vt.  172, 
31  Atl.  34.  And  he  must  act  in  good  faith.  Crane  v.  Gruenewald, 
120  N.  Y.  274,  24  N.  E.  456. 

no  Columbia  Mill  Co.  v.  Bank,  52  Minn.  224,  53  N.  W.  1061. 

70  Martin  v.  Webb,  110  U.  S.  7;  Gilbraith  v.  Lineberger,  69  N.  C. 
145;  St.  I.,ouis,  etc.,  Co.  v.  Parker,  59  111.  23;  Johnson  v.  Invest- 
ment Co.,  46  Neb.  480,  64  N.  W.  1100;  Fraternal  Army  of  America 
V.  Evans.  215  111.  629,  71  N.  E.  689.  So  where  a  person  has  held 
another  out  as  his  agf-nt,  he  will  be  estopped,  as  against  parties 


APPOINTMENT  OF  AGENTS.  65 

So,  where  a  mortgagee  permitted  an  attorney,  who  ncgo- 
Liated  a  loan,  to  retain  possession  of  the  note  and  mortgage 
after  the  principal  was  due,  and  the  mortgagor,  with  knowl- 
edge of  that  fact,  and  relying  upon  the  same,  made  payment 
to  the  attorney,  the  owner  was  held  to  be  estopped  to  deny 
that  the  attorney  possessed  the  authority  which  possession 
of  the  securities  indicated J^  "The  rule,"  said  the  court, 
"comprises  two  elements:  First,  possession  of  the  securities 
by  the  attorney  with  consent  of  the  mortgagee ;  and  second, 
knowledge  of  such  possession  on  the  part  of  the  mortgagor. 
]\Iere  possession  of  the  securities  by  the  attorney  is  not  suf- 
ficient. The  mortgagor  must  have  knowledge  of  the  fact, 
for  he  could  not  have  been  misled  or  deceived  by  a  fact, 
the  existence  of  which  was  unknown  to  him.  It  is  the  ap- 
pearance of  authority  to  collect,  furnished  by  the  custody 
of  the  securities,  which  justifies  him  in  making  payment. 
And  it  is  because  the  mortgagor  acts  in  reliance  upon  such 
appearance,  an  appearance  made  possible  only  by  the  act 
of  the  mortgagee  in  leaving  the  securities  in  the  hands  of 
the  attorney,  that  estops  the  owner  from  denying  the  ex- 
istence of  authority  in  the  attorney  which  such  possession 
indicates."  ^^ 

Agency  by  estoppel  is  not  readily  distinguishable  from 
agency  by  implication.  "In  fact,"  says  Pomeroy,  "the 
principle  which  underlies  the  doctrine  of  the  implied  au- 

•who  have  dealt  with  such  agent,  to  rleny  the  latter's  authority, 
notwithstanding  its  revocation,  if  such  parties  had  no  notice  there- 
of. Hatch  V.  Coddington,  95  U.  S.  48;  Southern  Life  Ins.  Co.  v. 
McCain,  96  U.  S.  84. 

■?i  Crane  v.  Gruenewald,  120  N.  Y.  274„  24  N.  E.  456.  The  fact  of 
possession  of  a  note  and  deed  of  trust  by  an  attorney  is  presump- 
tive enough  to  justify  payment  to  him.  Whelan  v.  Reilly,  61  Mo_ 
565. 

72  Crane  v.  Gruenewald,  supra. 
5 


66  THE  LAW  OP  AGENCY. 

thority  of  an  agent,  in  most  of  its  applications,  and  which 
prevents  the  principal  from  denying  the  authority  which, 
by  his  conduct,  he  has  held  the  agent  out  to  the  world  as 
possessing,  is  identically  the  same  principle  which  consti- 
tutes the  essence  of  all  equitable  estoppels. "  ^^  Theoreti- 
cally, at  least,  there  is  this  distinction :  In  cases  of  implied 
agency,  the  implication  is  an  inference  from  conduct  of  an 
intention  to  confer  authority;  while  in  agency  by  estoppel, 
such  intention  is  not  a  factor,  but  the  party's  conduct  is 
held  to  be  such  as  to  render  it  inequitable  for  him  to  deny 
the  existence  of  the  agency,  though  it  does  not  in  fact  exist. 
So,  practically,  it  is  conceivable  that  facts  which  would  be 
sufficient  to  raise  an  implication  of  authority  might  not  be 
sufficient  to  create  an  estoppel;  as  where  the  third  party, 
at  the  time  of  dealing  with  the  assumed  agent,  had  no  knowl- 
edge of  the  conduct  of  the  principal  which  gives  rise  to  the 
implication  of  authority.'^* 

§  52.  Acceptance  by  agent.  Since  the  relation  of  prin 
oipal  and  agent  is  founded  on  contract,  the  same  can  no! 
be  created  except  by  assent  of  both  parties.  Hence  to  con 
stitute  one  an  agent,  there  must  be  assent  on  his  part  a. 

78  Pomeroy  on  Equity,  §  801. 

74  One  dealing  with  an  agent  may  show  actual  authority  in  him 
such  authority  as  the  principal  in  fact  intended  to  vest  in  the 
agent,  although  such  intention  Is  to  be  shown  by  acts  and  conduct, 
rather  than  express  words,  without  showing  that  he  hnew,  when 
ho  dealt  with  the  agent,  of  the  acts  and  conduct  from  which  the 
intention  is  to  be  implied.  For  the  sake  of  convenience,  we  must 
make  a  distinction  between  implied  authority — that  is,  such  a« 
tho  principal  intends  the  agent  to  have — and  apparent  authority — 
that  Is,  such  as  he  permits  the  agent  to  appear  to  have.  The  rule 
as  to  apparent  authority  rests  essentially  on  tho  doctrine  of  es- 
toppel.    Columbia  Mill  Co.  v.  Bank,  52  Minn.  224,  53  N.  W.  1061 


APPOINTMENT  OP  AGENTS.  67 

well  as  on  that  of  tlie  principal ;  and  an  appointment  is  not 
effective  until  accepted  by  the  agentJ®  This  acceptance 
will  be  implied  from  performance  of  the  agencyJ' 

7B  First  Nat.  Bank  v.  Free,  67  Iowa,  11,  24  N.  W.  566;  Beebe  v. 
De  Baun,  8  Ark.  510. 

78  George  v.  Sandell,  18  La.  Ann.  535.  Where  a  joint  agency, 
established  by  correspondence,  is  modified  by  letter,  creating  a 
sole  agency,  which  though  not  accepted  in  writing,  is  acted  on  by 
the  agent,  the  sole  agency  is  complete.  Mueller  v.  Bethesda 
Springs  Co.,  88  Mich.  390,  50  N.  W.  319. 


CHAPTER  V. 

RATIFICATION. 

S  53.  In  general. 

54.  What  acts  or  contracts  may  be  ratified. 

(a)  In  general. 

(b)  Contracts. 

(c)  Torts. 

(d)  Forgery. 

55.  Conditions  to  ratification. 

(a)  Assumption  of  agency. 

(b)  Existence  and  designation  of  principal. 

56.  Who  may  ratify. 

57.  Manner  of  ratification. 

(a)  In  general. 

(b)  Ratification    of   sealed   instruments  and  of  eon- 

tracts  required  to  be  in  writing.. 

(c)  Express  oral  ratification. 

58.  Implied  ratification. 

(a)  By  affirmative  act. 

(b)  By  silence. 

59.  Estoppel. 

60.  Knowledge  of  material  facts. 

61.  Ratification  in  part. 

62.  Effect  of  ratification. 

(a)  In  general. 

(b)  Intervening  rights  of  strangers. 

63.  Effect  between  principal  and  third  party, 

(a)  In  general. 

(b)  Acts. 

(c)  Contracts. 

64.  Effect  on  agent. 

§  53.  In  general.  An  act  porformed,  or  a  contract  en- 
tered into,  ])y  one,  pci-son  in  Ixilialf  of  another,  unless  au- 
tliori/cd  by  the  l;itlci-,  cxpr-cssly  or  impliedly,  is  not  his  act 


RATIFICATION.  69 

or  contract,  and,  in  the  absence  of  an  estoppel,  will  in  no 
way  be  binding  upon  him.  One  man  can  not  act  as  agent 
for  another  without  that  other's  assent.^  In  accordance 
with  the  doctrine  to  be  discussed  in  the  present  chapter, 
however,  it  will  be  seen  that  under  certain  conditions  the 
assent  of  a  principal  to  the  performance  of  acts  in  his  be- 
half by  another  may  be  given  after  as  well  as  before  their 
performance.  Broadly  stated,  it  is  the  doctrine  of  ratifica- 
tion that  any  act  done,  or  contract  entered  into,  in  behalf 
of  a  person  by  one  who,  without  authority,  assumed  to  act 
as  his  agent,  may  be  adopted  by  such  person  and  made  his 
own,  "wdth  much  the  same  effect  upon  all  parties  as  if  the 
act  or  contract  had  been  originally  authorized ;  the  subse- 
quent assent  relating  back,  and,  in  the  main,  becoming 
equivalent  to  an  original  authorization.^  The  doctrine  of 
ratification,  it  may  be  added,  is  applicable  either  where  the 
act  adopted  was  performed  by  a  stranger,  without  shadow 
of  authority ;  or  where  the  acts  were  those  of  an  agent  done 
in  excess  of  his  authority.' 

§  54.  What  acts  or  contracts  may  be  ratified,  (a)  In 
general.  Any  act,  for  the  performance  of  which,  a  per- 
son by  precedent  autliorization  could  have  made  himself 

iMcGoldrick  v.  Willitts,  52  N.  Y.  612;  Graves  v.  Horton,  38 
Minn.  66,  35  N.  W.  568. 

2  Lowry  v.  Harris,  12  Minn.  255;  Fleckner  v.  Bank,  8  Wheat. 
(U.  S.)  363;  Cook  v.  Tullis,  18  Wall.  (U.  S.)  332;  U.  S.  Express 
CJo.  V.  Rawson,  106  Ind.  215,  6  N.  E.  337.  Ratification  of  an.  un- 
authorized agreement  relates  back  to  its  inception,  and,  in  an 
action  thereon,  such  ratification,  need  not  be  pleaded,  but  may 
be  shown  in  proof  of  the  agreement.  Long  v.  Osbom,  91  Iowa, 
160.  59  N.  W.  14. 

sMilligan  r.  Davis,  49  Iowa,  126;  Waterson  v.  Rogers,  21  Kan 
529;  AUin  v.  Williams.  97  Cal.  403,  32  Pac.  441;  Ward  v.  Williams, 
26  lU.  447,  79  Am.  Dec.  385. 


70  THE  LAW  OP  AGENCY. 

liable;  or  any  contract,  made  in  his  behalf,  which  could 
have  been  precedently  authorized;  may  be  ratified  by  such 
person  and  made  his  own  with  the  same  effect  upon  him  as 
though  he  had  originally  authorized  the  same.*  An  act, 
for  the  performance  of  which  a  person  could  not  have  made 
himself  liable  by  precedent  authorization;  or  a  contract 
which  could  not,  in  the  first  instance,  have  been  authorized ; 
can  not  subsequently  be  ratified ;  for  the  reason  that  ratifi- 
cation relates  back  and  is  deemed  equivalent  to  original 
authorization.'  This  retroactive  authorization,  naturally, 
can  not  accomplish  more  than  could  have  been  accomplished 
by  precedent  authority." 

(b)  Contracts.  Many  contracts — such  as  those  in  con- 
travention of  law,  good  morals,  or  public  policy — are  illegal, 
and  can  not  be  validly  executed,  either  personally  or  by 
agent.'  Such  contracts  when  entered  into,  without  au- 
thority, in  behalf  of  another,  can  not  be  ratified  by  him.* 

*Borel  V.  Rollins,  30  Cal.  408;  McCracken  v.  San  Francisco,  16 
Cal.  591;  Armitage  v.  Widoe,  36  Mich.  124;  Griswold  v.  Haven,  25 
N.  Y.  595,  82  Am.  Dec.  380.  An  exception  must  be  noted  in  the 
case  of  crimes.    Post  §  54  (c). 

5  Harrison  v.  McHenry,  9  Ga.  164,  52  Am.  Dec.  435;  Turner  v. 
Phoenix  Ins.  Co.,  55  Mich.  236,  21  N.  W.  326;  MacFarland  v.  Heim, 
127  Mo.  327,  29  S.  W.  1030. 

a  Weston  V.  Estey,  22  Colo.  334,  45  Pac.  367;  Sumner  v.  Conant, 
10  Vt.  9.  Thus  an  agent  having  no  authority  to  appoint  subagents 
can  not  ratify  the  act  of  one  assuming  to  act  as  subagent  Trudo 
V.  Anderson,  10  Mich.  357.  It  has  been  held,  however,  that  though 
an  executor  can  not  delegate  his  power  of  sale,  he  could  ratify  an 
unauthorized  sale,  for  the  reason  that  ratification  would  be  equiv- 
alent to  personal  exerriso  of  the  power.  Lake  Shore  &  M.  S.  Ry. 
Co.  v.  Ilutchins,  37  Ohio  St.  282. 

»  Bishop  on  Contracts,  Chap.  XVIII. 

•  United  States  v.  Grossmayer,  76  U.  S.  72;  Boutolle  ▼.  Melendy, 
19  N.  H.  196;  State  v.  Torinus,  26  Minn.  1,  49  N.  W.  259;  Spencc 
T.  Cotton  Mills,  115  N.  C.  210.  20  S.  E.  372. 


RATIFICATION.  71 

Tims,  a  contract  made  in  behalf  of  another  with  an  alien 
enemy  can  not  be  ratified ;  *  an  agreement  to  influence  legis- 
lation, to  commit  an  unlawful  or  immoral  act,  or  a  contract 
in  restraint  of  trade,  could  not  be  ratified  by  the  person  in 
whose  behalf  the  same  was  made.^°  So,  an  attempted  lease, 
by  an  agent,  which  could  not  have  been  originally  author- 
ized, can  not  be  made  valid  by  ratification ;  ^^  and  where  a 
municipal  contract  is  void  because  made  with  a  company 
in  which  members  of  the  council  have  an  interest,  the  same 
can  not  be  ratified  by  a  subsequent  council,  none  of  whose 
members  has  an  interest  in  the  company.^^  So,  where  cer- 
tain contracts — as  those  for  sale  of  intoxicating  liquor — 
are  expressly  declared  by  statute  to  be  invalid,  such  con- 
tracts can  not  be  precedently  authorized  and  hence  can  not 
be  ratified.^*  And  the  rule  would  be  the  same,  though  at 
the  time  of  ratification,  the  statute  had  been  repealed,  and 
such  contracts  could  then  be  authorized.^* 

(c)  Torts.  One  who  authorizes  the  commission  of  a 
tort  is  liable  in  damages  for  the  injury  sustained ;  *°  and 

»  United  States  v.  Grossmayer,  supra. 

10  Harrison  v.  McHenry,  9  Ga.  164,  52  Am.  Dec.  435;  Le  TouP- 
neux  V.  Gilliss,  1  Cal.  App.  546,  82  Pac.  627;  Shepardson  v.  Gil- 
lette, 133  Ind.  125,  31  N.  B.  788. 

11  Sanford  v.  Johnson,  24  Minn.  172. 

12  Milford  V.  Water  Co.,  124  Pa.  St.  610,  17  Atl.  185. 

isBuclv  V.  Albee,  27  Vt.  190;  Melchoir  v.  McCarty,  31  Wis.  252; 
Niber  v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252. 

1*  Hathaway  v.  Moran,  44  Me.  67;  Webber  v.  Howe,  3G  Mich. 
150.  A  contract  of  a  corporation  void  because  not  in  writing  and 
sealed  as  required  by  statute  can  not  be  ratified  though  the  sta- 
tute is  subsequently  repealed.  Spence  v.  Cotton  Mills,  115  N.  C. 
210,  20  S.  E.  372.  The  validity  of  a  contract  depends  on  the  law 
in  existence  at  the  time  when  It  was  made  and  it  can  not  be  ef- 
fected by  subsequent  change  of  the  law.  Murrel  v.  Jones,  40  Miss. 
565. 

iBCooley  on  Torts,  Chap.  XVIII;  Post  §  117. 


72  THE  LAW  OF  AGENCY. 

this  liability  may  be  created,  as  well  by  ratification  as  by 
pi'ecedent  authorization.^*'  A  person,  by  ratification,  may 
become  liable  for  a  wilful  trespass,  a  fraud,  or  other  tort, 
committed  by  another,  without  authority,  in  his  behalf;  ^^ 
and  so  where  a  principal  accepts  goods  wrongfully  seized 
by  his  agent,  with  knowledge  of  the  facts,  he  will  be  held 
liable  for  an  unauthorized  assault  committed  by  the  agent 
while  making  the  seizure.^^  So,  where  a  person  knowingh' 
accepted  proceeds  of  a  wrongful  sale  of  goods,  stored  in  liis 
warehouse,  he  was  held  liable,  on  the  theory  of  ratification. 
for  conversion.^"  Acceptance  of  the  fruits  of  another's 
wrongful  act,  with  guilty  knowledge,  may  subject  a  person 
to  liability,  regardless  of  whether  the  immediate  wrong- 
doer assumed  to  act  as  his  agent.^°  In  such  case,  however, 
the  liability  would  be  based  upon  a  distinct  doctrine  of 
the  law  of  torts,  not  upon  that  of  agency  by  ratification ; 
and  it  seems  more  accurate  to  maintain  that  a  tort,  like 
other  acts,  can  be  ratified  by  a  person  only  where  it  was 

i«  Morehouse  v.  Northnip,  33  Conn.  380,  89  Am.  Dec.  211;  Brown 
V.  Webster  City,  115  Iowa,  511,  88  N.  W.  1070;  Crockett  Bros.  v. 
Sibley,  3  Ga.  App.  554,  GO  S.  E.  326.  The  failure  of  a  corporation 
to  repudiate  a  letter  of  its  agent  which  was  libelous  per  se  wir. 
create  liability  by  ratification  for  the  libel.  Pennsylvania  Iron 
Works  Co.  V.  Henry  Voght  Mach.  Co.,  29  Ky.  Law  Rep.  861,  96  S. 
W.  551. 

'TExum  V.  Brister,  35  Miss.  391;  Byne  v.  Hatcher.  75  Ga.  289; 
Dunn  V.  Hartford  Ry.  Co.,  43  Conn.  434;  Street  v.  Sinclair,  71  Ala. 
110. 

'«  Avaldan  v.  Noble,  121  Cal.  216,  53  Pac.  559;  Nims  v.  Mt.  Her- 
mon  School.  100  Mass.  177,  35  N.  E.  776. 

18  Creson  v.  Ward,  66  Ark.  209,  49  S.  W.  827.  Where  an  agent 
for  sale  of  land  Is  guilty  of  deceit  and  the  principal,  with  know- 
ledge, accepts  the  benefits  of  hi.s  misrepresentations,  he  is  liable 
therefor.    Krolilc  v.  Curry,  14.S  Mich.  214,  111  N.  W.  761. 

20  RandlPtte  v.  Judldn,  77  Mo.  114;  Holliday  v.  Jaclison,  30  Mo 
App.  263;  Coolcy  on  Torts,  Chap.  V. 


RATIFICATION.  73 

committed  by  one  who  assumed  to  act  in  his  behalf  or  as  his 
agent.^^  So,  of  coui-se,  where  a  person  makes  himself  crim- 
inally liable  by  sharing  in  the  fruits  of  another's  crime, 
the  liability  arises  from  commission  of  an  independent 
criminal  act,  and  is  not  based  upon  the  theory  of  ratifica- 
tion.^^  There  can,  indeed,  be  no  ratification  of  a  crime  so 
as  to  create  criminal  liability ;  for  the  reason  that  to  consti- 
tute crime,  intent  must  coexist  with  the  wrongful  act. 
Hence  a  principal  could  make  himself  criminally  liable  for 
his  agent's  act  only  by  prior  assent.-^ 

(d)  Forgery.  Where  a  signature  is  not  required  by  law 
to  be  personally  affixed,^*  a  person  may  ratify  the  unau- 
thorized signing  of  his  name  by  another.^^  It  has  been 
seriously  contended,  however,  that  a  forgery  is  incapable 
of  ratification,  for  the  reason  that  the  forger  does  not  pur- 
port to  act  in  behalf  of  another,  but  represents  the  signa- 
ture to  be  the  personal  one  of  the  party  whose  name  is 
signed.^^  So,  it  has  been  held  that  ratification  of  a  forgery 
would  be  against  public  policy,  since  its  effect  would  be  to 

21  "He  that  agreeth  to  a  trespass  after  it  is  done  is  no  tres- 
passer, unless  the  trespass  was  done  to  his  use  or  for  his  benefit, 
and  then  his  agreement  subsequent  amounteth  to  a  command- 
ment." Coke's  Inst.  McDonald  v.  McCoy,  121  Cal.  55,  53  Pac.  421; 
Beveridge  v.  Rawson,  51  111.  504;  Allred  v.  Bray,  41  Mo.  484; 
Russo  V.  Maresca,  72  Conn.  51,  43  Atl.  552;  Mattocks  v.  Young,  66 
Me.  459. 

22  McClain  on  Criminal  Law,  §  209. 

23  Morse  v.  State,  6  Conn.  9;  Com.  v.  Nichols,  10  Mete.  (Mass.) 
259;   Post  §  122. 

24  Ante  §  31. 

25  Keim  v.  O'Reilly,  54  N.  J.  Eq.  418,  34  Atl.  1073;  Nye  v.  Lowry, 
82  Ind.  316;  Conlan  v.  Grace,  30  Minn.  276,  30  N.  W.  880. 

26  Brook  V.  Hook,  6  Ex.  (Eng.)  89;  Henry  v.  Heeb,  114  Ind.  275. 
16  N.  E.  606;  Owsley  v.  Philips,  78  Ky.  517,  39  Am.  Rep.  258; 
Henry  Christian  B.  &  L.  Ass'n  v.  Walton,  181  Pa.  St.  201,  37  Atl. 
:>61. 


74  THE  LAW  OF  AGENCY. 

conceal  crime  and  suppress  its  prosecution. '^  Little  weight 
has  been  given  to  the  first  objection  which  is  ingenious  but 
doubtless  too  refined ;  ^^  and,  on  principle,  it  seems  the  bet- 
ter doctrine  that  a  person  can  ratify  his  forged  signature 
and  thus  obligate  himself  by  the  instrument  to  which  it 
lias  been  affixed,  but  such  ratification  will  in  no  way  relieve 
the  forger  from  liability  for  his  criminal  act.^^ 

§  55.  Conditions  to  ratification,  (a)  Assumption  of 
agency.  As  indicated  in  a  preceding  section,  an  act  per- 
formed by  one  person  can  be  ratified  by  another  only  when 
done  in  his  behalf.^°  This  rule  applies  with  even  greater 
force  to  contracts.  It  is  elementary  that  a  stranger  to  a 
transaction  can  not  force  himself  into  the  position  of  a 
party  thereto.  If  A,  in  his  own  behalf,  deals  with  B,  a 
third  person  can  not,  by  ratification,  substitute  himself  for 
A  as  a  party  to  the  contract.  So,  if  A,  in  making  the  con 
tract,  assumed  to  act  for  C,  a  stranger  to  the  transaction 
could  not  ratify  the  same.  C,  however,  in  whose  behali 
the  contract  was  made,  may  ratify  it;  for  the  situation, 
then,  merely  becomes  such  as  was  represented  to  exist,  and 
H  is  bound  by  contract  with  the  very  person  with  whom  he 
thought  he  was  dealing.  It  is  the  rule,  then,  that  a  person 
may  ratify  a  contract  only  when  the  same  was  made  in  hi'-- 
behalf  by  one  who  assumed  to  act  as  his  agent.^^ 

2v  Henry  v.  Heeb,  supra. 

28  Greenfield  Bank  v.  Crafts,  4  Allen  (Mass.),  447. 

29  Wellington  v.  Jackson,  121  Mass.  157;  Casco  Bank  v.  Keenp, 
53  Me.  103;  Livings  v.  Wiler,  32  111.  387;  McKenzie  v.  British 
Linen  Co.,  6  App.  Cas.  (Eng.)  82. 

soAnte  §  54  (c).  Where  an  agent  wrongfully  pledges  his  prin- 
cipal's property  to  secure  his  own  debt,  the  transaction  could  not 
be  ratified  by  the  principal,  for  nothing  was  done  in  his  1  ehalf. 
Wycofr.  Seaman  &  Benedict  v.  Davis.  127  Iowa,  399,  103  N.  W.  340. 

«>  Virgiriin,  (^ic.  Coal  Co.  v.  Tvamliort.  107  Va.  3C8.  58  S.  E.  561; 


RATIFICATION.  75 

(b)  Existence  and  designation  of  principal.  It  is  but  a 
corollary  of  the  foregoing  rule,  that  the  principal,  in  whose 
behalf  the  contract  was  made,  must  have  been  in  existence 
at  the  time  the  same  was  entered  into  by  the  assumed 
agent.^^  Thus,  where  a  promoter  of  a  proposed  corpora- 
tion makes  a  contract  in  its  behalf,  the  same  can  not  be 
i-atified  by  the  company  after  its  incorporation.^^  Where, 
however,  the  corporation  subsequently  acts  upon  the  con- 
tract and  accepts  its  benefits,  liability  thereunder  will 
usually  be  created,  but  not,  strictly,  on  the  doctrine  of  rati- 
fication, but  rather  on  the  theory  of  an  independent  implied 
agreement ;  '*  and  hence  liability  will  not  relate  back  to  the 
date  of  the  original  contract.^^  It  is  a  further  corollary 
of  the  rule  under  discussion  that  the  principal,  in  whose 
behalf  the  agent  assumes  to  deal,  must,  in  some  way,  be 
designated;  though  the  designation  need  not  be  specific, 
but  must  be  sufficient  to  render  the  principal  capable  of  as- 
certainment.^^ Thus  a  policy  of  insurance  taken  out  on  a 
vessel  in  behalf  of  all  persons  interested,  may  be  ratified 
by  any  person  who,  in  fact  at  the  time  had  an  interest  in 
the  property.^'  And  it  would  make  no  difference  that  the 
intended  principal  was  unknown  at  the  time  to  the  agent.^* 

Commercial',  etc.,  Bank  v.  Jones,  18  Tex.  811;  Mitchell  v.  Min- 
nesota Fire  Ass'n,  48  Minn.  278,  51  N.  W.  GOB;  Fellows  v.  CJommis- 
sioners,  36  Barb.  (N.  Y.)  655;  Ilfeld  v.  Zeigler,  40  Colo.  401,  91 
Pac.  825. 

32  Scott  V.  Lord  Ebury  L.  R.,  2  C.  P.   (Eng.)  255. 

33  Abbot  V.  Hapgood,  150  Mass.  248,  22  N.  E.  907;  But,  see,  Oakes 
V.  Water  Co.,  143  N.  Y.  430,  38  N.  E.  461. 

84  Low  V.  Railway  Co.,  45  N.  H.  370;  Bell's  Gap  Ry.  Co.  v.  Cristy, 
79  Pa.  St.  54,  21  Am.  Rep.  39;  Paxton  Cattle  Co.  v.  Bank,  21  Neb. 
621,  33  N.  W.  271. 

35  McArthur  v.  Printing  Co.,  48  Minn.  319,  51  N.  W.  216. 

88  Watson  V.  Swann,  11  C.  B.  (N.  S)    (Eng.)  756. 

87  Hagedorn  v.  Oliverson,  2  M.  &  S.  485. 

88  Mechem  on  Agency  §  124. 


76  THE  LAW  OP  AGENCY. 

§  56.  Who  may  ratify.  A  person  may  ratify  a  lawful 
contract  made,  in  his  behalf,  by  one  who  assumed  to  act  as 
his  agent,  provided  that  at  the  time  it  was  entered  into  he 
possessed  legal  capacity  to  make  such  a  contract,  or  to  au- 
thorize its  making ;  ^^  and  provided,  further,  that  at  tlic 
time  of  ratification,  he  still  possesses  such  capacity.*"  Rati- 
fication, as  we  have  seen,  relates  back  and  becomes  equiva- 
lent to  precedent  authorization, — hence  the  rule  that  in 
order  to  ratify,  a  person  must  have  had  capacity  to  author- 
ize. But  though  relating  back,  ratification,  in  reality,  is 
the  present  giving  of  power,  and  necessarily  presupposes 
a  present  capacity  in  the  giver, — ^hence  the  rule  that  in 
order  to  make  a  contract  his  ovm.  by  ratification,  a  person 
must,  at  the  time  he  ratifies  it,  still  be  capable  of  making, 
or  authorizing  the  making,  of  the  same.  Thus,  where  it 
is  held  that  an  insane  person  can  not  authorize  the  making 
of  a  contract  by  agent,  a  contract  so  made,  in  his  behalf, 
could  not  be  ratified  by  him,  even  after  restoration  to  san 
ity;  *^  and  the  same  would  be  true  where  a  person,  after 
reaching  his  majority,  seeks  to  ratify  a  contract  made  in  his 
behalf  during  his  infancy.*^     Conversely,  a  contract  made 

39Armitage  v.  Widoe,  36  Mich.  124;  Marsh  v.  Fulton  Co.,  10 
Wall.  (U.  S.)  676;  Ironwood  Store  Co.  v.  Harrison,  75  Mich.  197, 
42  N.  W.  808. 

40  Tnieblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756;  Mac- 
Farland  v.  Ileim,  127  Mo.  327,  29  S.  W.  1030.  Thus  an  adminis- 
trator after  his  discharge  can  not  ratify  an  act  done,  in  behalf  of 
the  estate  before  his  discharge.  Upton  v.  Dennis,  133  Mich.  238, 
94  N.  W.  728. 

*i  Dexter  v.  Hall,  15  Wall.  (U.  S.)  9;  Lee  v.  Morris,  3  Bush. 
(Ky.)   210;   Fetrow  v.  Wiseman,  40  Ind.  148. 

**Philpot  V.  Bingham.  .GG  Ala.  435;  Lawrence  v.  McArter,  10 
Ohio,  37:  Armltago  v.  Wldoe,  36  Mich.  124.  The  tendency  of  mod- 
ern derisions  is  to  hold  the  appointment  of  agents  by  infants  anil 
lunatics  voidable  and  not  void.    According  to  this  doctrine  a  con- 


BATIFICATION.  77 

in  behalf  of  a  person  without  authority,  could  not  be  ratified 
by  him,  if  subsequently  he  becomes  insane."  So,  a  con- 
tract made  in  behalf  of  a  married  woman  could  not  be  rati- 
fied by  her,  though  by  subsequent  enabling  acts  she  was 
given  power  to  contract;**  and  a  municipal  corporation, 
which  is  without  power  to  issue  bonds,  can  not  validate  an 
issue  thereof  by  ratification,  even  though  power  to  issue 
bonds  has  subsequently  been  granted.*' 

§  57.  Manner  of  ratification,     (a)  In  general.    As  in 

the  case  of  precedent  authorization,  ratification  may,  with 
few  exceptions,  be  either  verbal  or  written,  or  it  may  be 
implied  from  acts  or  conduct.  So,  a  person 's  conduct  may 
have  been  such  as  to  estop  him  from  denying  a  ratification. 
(b)  Ratification  of  sealed  instruments  and  of  contracts 
required  to  be  in  writing.  Since  precedent  authority  to 
execute  a  sealed  instrument  must  be  given  under  seal,**^ 
and  ratification  relates  back  and  becomes  equivalent  to  such 

tract  made  in  behalf  of  infants  or  lunatics  could  be  ratified  after 
attainment  of  competency.    See,  ante  §  17  and  §  21. 

*3  Only  a  party  having  capacity  to  make  the  contract  can  ratify 
it  Bishop  on  Contracts,  §  848;  Cook  v.  Tullis,  18  Wall.  (U.  S.) 
332. 

44  Sellars  v.  Kelly,  45  Miss.  323.  The  execution  by  a  husband 
of  a  lien  on  crops  belonging  to  his  wife  being  void,  she  can  not 
ratify  on  becoming  discovert.  Rawlings  v.  NeaJ,  126  N.  C.  271, 
35  S.  E.  597. 

45  Calhoun  v.  Millard,  121  N.  Y.  69,  24  N.  E.  27.  An  unauthor- 
ized  act  done  in  behalf  of  a  corporation  may  be  ratified  by  it, 
provided  such  act  was  within  the  scope  of  its  corporate  power. 
Lyndeborough  Glass  Co.  v.  Glass  Co.,  Ill  Mass.  315;  Kelesy  v. 
Bank,  69  Pa.  426.  So  the  state  may  ratify  an  unauthorized  act  of 
a  public  agent,  provided  performance  of  the  act  is  within  the  con- 
stitutional power  of  the  state.  State  v.  Torinus,  26  Minn.  1,  49  N 
W.  259;  State  v.  Buttles  Ex'r,  3  Ohio  St.  209. 

46  Ante  §  46. 


78  THE  LAW  OF  AGENCY. 

authority,  it  follows  that  ratification  of  a  sealed  instrument, 
executed  in  behalf  of  another,  can  be  ratified  only  by  an 
instrument  under  seal.*^  Such  ratification  may  be  effected 
either  by  an  instrument  in  terms  ratifying  the  deed;  or 
by  a  power  of  attorney,  prospective  in  terms,  but  dated 
prior  to  the  execution  by  the  agent  of  the  sealed  instrument 
sought  to  be  ratified.*^  The  rule,  however,  has  been  so  far 
modified  as  to  permit  a  parol  ratification  by  one  partner 
of  a  sealed  instrument  executed  by  another  in  behalf  of  the- 
firm;*''  and  in  Massachusetts  the  rule  has  been  entirely 
abrogated,  and  it  is  there  held  that  the  execution  of  a  sealed 
instrument  may  be  ratified  by  parol.°°  Where,  by  statute, 
authority  to  execute  certain  parol  contracts  is  required  to 
be  in  writing,^^  a  doctrine  similar  to  that  under  discussion 
applies,  and  ratification  of  such  contracts  must  be  written/- 
(c)  Express  oral  ratification.  Where  not  required  to 
be  under  seal  or  in  writing,  as  explained  in  the  preceding 

*7  Blood  V.  Goodrich,  12  Wend.  (N.  Y.)  525,  27  Am.  Dec.  152; 
Grove  v.  Hodges,  55  Pa.  St.  504;  Zimpelman  v.  Keating,  72  Tex 
318,  12  S.  W.  177;  Hayes  v.  City  of  Atlanta,  1  Ga.  App.  25,  57  S 
E.  1087. 

*8Millildn  v.  Coombs,  1  Greenl.  (Me.)  343,  10  Am.  Dec.  70;  Rig 
gan  v.  Grain,  86  Ky.  249,  5  S.  W.  5G1. 

•«9  Sl< inner  v.  Dayton,  19  Johns.  (N.  Y.)  513,  10  Am.  Dec.  286; 
Peine  v.  Weber,  47  111.  45. 

60  Holbroolt  v.  Chamberlain,  116  Mass.  155,  17  Am.  Rep.  146; 
Mclntyre  v.  Park,  11  Gray  (Mass.),  102,  71  Am.  Dec.  690.  As  in 
the  case  of  original  authorization,  if  the  seal  is  not  necessary  to 
the  validity  of  the  instrument  it  may  be  disregarded  and  parol 
ratification  will  be  sufficient.  Adams  v.  Powers,  52  Miss.  828;  Wor- 
rail  v.  Miinn,  5  N.  Y.  229. 

81  Ante  §  48. 

62  Gosh  v.  Stevens,  32  Minn.  472,  21  N.  W.  549;  Kozel  v.  Dear- 
love.  144  111.  23,  32  N.  E.  542;  Hawlilns  v.  McGroarty,  110  Mo.  550. 
19  S.  W.  830;  Contra:  Hammond  v.  Hannin,  21  Mich.  374,  4  Am 
Rep.  490. 


RATIFICATION.  79 

section,  aj/  form  of  words  that  indicates  willingness  on  the 
part  of  a  supposed  principal  to  adopt  an  act  or  contract 
will  be  sufficient  evidence  of  a  ratification  thereof.'* 

§  58.  Implied  ratification,  (a)  By  aflfirmative  act. 
Assent  to  be  bound  by  an  unauthorized  act  or  contract  may 
be  inferred  from  conduct.''*  An  act  done  in  recognition 
of  a  transaction,  with  knowledge  of  the  facts,  is  evidence 
of  intention  to  ratify  the  same.^'  Thus  entry  upon,  and 
use  of  land,  under  an  unauthorized  lease ;  or  taking  pos- 
ses.=;ion.  under  an  unauthorized  contract  of  purchase,  will 
amount   to  ratification   of   such   lease    or   contract.'®     So, 

53  Truslow  V.  Parkersburg  Bridge  Co.,  61  W.  Va.  628,  57  S.  E.  51; 
Brown  v.  Henry,  172  Mass.  559,  52  N.  E.  1073.  A  power  of  attor- 
ney to  do  future  acts  does  not  amount  to  a  ratification  of  similar 
acts  already  done.  Britt  v.  Gordon,  132  Iowa,  431,  108  N.  W.  319. 
So,  retaining  a  salesman  after  knowledge  of  his  unauthorized  act 
is  not  evidence  of  ratification.  Deacon  v.  Greenfield,  141  Pa.  St. 
467,  21  Atl.  650. 

54  Western  Mfg.  Co.  v.  Cotton,  31  Ky.  Law  Rep.  1130,  104  S.  W. 
758;  Ladenburg,  Thalman  &  Co.  v.  Beal-Doyle  Co.,  83  Ark.  440, 
104  S.  W.  145. 

55Allin  V.  Williams,  97  Cal.  403,  32  Pac.  441;  Welsh  v.  Ferd 
Heim  Brewing  Co.,  47  Mo.  App.  608;  Brown  v.  Wilson,  45  S.  C. 
519,  23  S.  E.  630.  The  possession  by  a  corporation  of  a  contract 
signed  by  its  secretary,  and  the  payment  of  money  thereunder  by 
such  corporation,  is  a  ratification  of  the  contract.  Wright  v. 
Farmers'  Mut.  Live  Stock  Ins.  Ass'n,  96  Iowa,  360,  65  N.  W.  308. 

56  Ehrmanntraut  v.  Robinson,  52  Minn.  333,  54  N.  W.  188;  Hall 
V.  White,  123  Pa.  St.  95,  16  Atl.  521;  Oregon  Ry.  Co.  v.  Oregon  R. 
&  Nav.  Co.,  28  Fed.  505;  Johnson  v.  Land  Co.,  116  N.  C.  926,  21  S. 
E.  28.  Acceptance  and  use  of  goods  purchased  without  authority 
ratifies  the  purchase.  Ketchum  v.  Verdell,  42  Ga.  534;  Williams 
V.  Crosby  Lumber  Co.,  118  N.  C.  928,  24  S.  E.  800.  The  owner  of 
a  building,  however,  is  not  liable  for  improvements  made  under 
an  unauthorized  contract,  because  he  afterwards  uses  them,  where 
they  are  of  such  a  character  that  they  can  not  be  removed.  Mllla 
V.  Berla  (Tex.  Civ.  App.),  23  S.  W.  910. 


80  THE  LAW  OF  AGENCY. 

where  an  agent,  without  authority,  makes  a  sale,  acceptance 
of  proceeds  ratifies  the  sale ;  ^^  and  the  rule  would  be  the 
same  where  a  principal,  knowingly,  accepts  rent  under  an 
unauthorized  lease,^^  or  the  proceeds  of  an  unauthorized 
loan  or  compromise.^"  x\s  will  be  explained  in  a  subsequent 
section,  the  acts  of  the  principal  must  be  done  with  knowl- 
edge of  the  facts.^"  Bringing  suit  based  upon  an  unauthor 
ized  transaction  will  amount  to  ratification  of  it.°^  Thus 
an  action  by  the  principal  to  enforce  a  contract  made  in 
his  behalf,  or  to  secure  from  the  agent  an  accounting  of  tho 
proceeds  thereof,  will  evidence  an  intention  to  ratify  the 
contract. ^^ 

67  Wallace  v.  Sawyer,  90  Ind.  499;  Nicholson  v.  Doney,  37  111- 
App.  531;  Akers  v.  Ray  County  Bank,  63  Mo.  App.  316;  Deering 
&  Co.  V.  Bank,  81  Iowa,  222,  46  N.  W.  1117;  Kirkpatrick  v.  Pease, 
202  Mo.  471,  101  S.  W.  651.  Appropriation  by  a  principal  of  the 
avails  of  an  agency  amounts  to  a  ratification  of  what  has  been 
done.    Gaudelupo,  etc.,  Min.  Co.  v.  Beatty  (Tenn.),  1  S.  W.  348. 

58  Reynolds  v.  Davison,  34  Md.  662;  Burkhard  v.  Mitchell,  16 
Colo.  376,  26  Pac.  657;  Clark  v.  Hyatt,  118  N.  Y.  563,  23  N.  E.  891. 

5s  Maddux  v.  Bevan,  39  Md.  485;  Taylor  v.  Ass'n,  68  Ala.  229; 
Miles  V.  Ogden.  54  Wis.  573,  12  N.  W.  81;  Houghton  v.  Dodge,  18 
N.  Y.  Super.  Ct.  326;  Orvis  v.  Wells,  Fargo  Co.,  19  C.  C.  A.  382,  73 
Fed.  110. 

«o  Post  §  60. 

61  Smith  V.  Morse,  9  Wall.  (U.  S.)  82:  Merrill  v.  Wilson,  66 
Mich.  232,  33  N.  W.  716;  Baily  &  Co.  v.  West  Lumber  Co.,  1  Ga 
App.  398,  58  S.  E.  120. 

62Shoninger  v.  Peabody.  57  Conn.  42.  17  Atl.  278;  Warder, 
BuRhnell  &  Gl(  ssner  v.  Cuthbert,  99  Iowa.  C81,  68  N.  W.  917;  Le 
Grande  Nat.  Bank  v.  Blum,  27  Ore.  215.  41  Pac.  659;  Frank  v. 
Jenkins.  22  Ohio  St.  597.  An  action  against  an  agent,  authorized 
to  purchase  land,  for  the  amount  of  a  commission  secretly  paid 
him  by  the  vendor,  is  not  such  a  ratification  of  the  transaction  as 
will  discharge  the  vendor  from  liability  for  fraud  and  deceit  by 
whlfh,  \vi(h  assistance  of  the  agent,  the  sale  was  induced.  Baxns- 
dall  v.  O'Day.  67  C.  C.  A.  278,  134  Fed.  828 


RATIFIC-A.TION.  81 

(b)  By  silence.  Ordinarily,  an  unauthorized  act  will 
not  bind  the  person  in  whose  behalf  it  was  performed  unless 
by  some  affirmative  conduct  he  indicates  an  intention  to 
adopt  it.  Hence  there  usually  is  no  obligation  upon  a  per- 
son to  dissent  from,  or  repudiate,  an  unauthorized  act  or 
contract.^^  Nevertheless,  circumstances  may  be  such  that 
failure  to  dissent  clearly  gives  rise  to  an  inference  of  ac- 
quiescence. And,  therefore,  in  many  cases  ratification  may 
be  implied  from  mere  silence.^*  Thus,  where  a  person  was 
informed  of  an  unauthorized  sale  of  his  property  by  his 
agent,  and  knew  that  the  purchaser  was  dealing  with  the 
same  as  his  own,  his  failure  to  dissent  from  the  transaction, 
within  a  reasonable  time,  raised  an  implication  of  intention 
to  ratify  it.*'^  "Subject  to  his  right  to  a  reasonable  op- 
portimity  to  express  his  dissent,  every  additional  day  and 
hour  of  silence,  after  he  became  privy  to  the  contract, 
operates  as  a  tacit  acquiescence,  and  raises  the  presumption 
of  assent. "  ^°     So  Adhere  a  principal  was  informed  by  his 

63  Brass  v.  Worth,  40  Barb.  (N.  Y.)  648;  Powell's  Adm'r  v. 
Henry,  27  Ala.  612;  Burns  v.  Kelley,  41  Miss.  339;  Deane  v.  Gray 
Bros.  Stone  Co.,  109  Cal.  433,  42  Pac.  443.  Mere  failure  to  dis- 
avow an  agent's  act  instantly  on  being  apprised  thereof  is  not 
ipso  facto  a  ratification.    Miller  v.  Stone  Co.,  1  111.  App.  273. 

64  Union  Gold  Min.  Co.  v.  Rocky  Mt.  Nat.  Bank,  96  U.  S.  640,  2 
Colo.  248;  Breed  v.  First  Nat.  Bank,  4  Colo.  481;  Morse  v.  Die- 
bold,  2  Mo.  App.  163;  Garland  v.  Wells,  15  Neb.  298,  18  N.  W. 
132;  Shinn  v.  Hicks,  68  Tex.  277,  4  S.  W.  486;  Wheeler  v.  Citizens' 
Bank,  32  Ky.  Law  Rep.  939,  107  S.  W.  316.  Failure  to  repudiate 
an  unauthorized  act  of  an  agent  usually  amounts  to  ratification 
thereof.    Lorie  v.  Railway  Co.,  32  Fed.  270. 

«5  Hall  V.  Harper,  17  111.  82;  Alexander  v.  Jones,  64  Iowa,  207, 
19  N.  W.  913. 

66  Bigg  V.  Stone,  3  Sm.  &  Gif.  (Eng.)  592;  Lynch  v,  Smyth,  25 

Colo.  103,  54  Pac.  634;  Reid  v.  Alaska  Packing  Co.,  47  Ore.  215,  83 

Pac.  139.    What  is  a  reasonable  time  to  disaffirm  an  unauthorized 

sale  is  a  question  of  fact;  a  delay  of  five  months  in  disaffirming 

6 


82  THE  LAW  OF  AGENCY. 

agent  that  the  latter,  in  his  behalf,  had  institnted  suit 
against  a  debtor,  causing  him  to  be  arrested  and  detained 
in  prison,  and  the  principal  made  no  inquiry  as  to  the 
ground  of  arrest  and  gave  no  directions  for  the  debtor's 
discharge,  it  was  held  that  his  inaction  in  the  premises 
amounted  to  a  ratification.^^ 

It  is  sometimes  stated  as  the  rule  that  where  the  relation 
of  principal  and  agent  already  exists,  failure,  after  knowl- 
edge, to  repudiate  an  act  of  the  agent,  done  in  excess  of  his 
authority,  will  be  evidence  of  ratification,^^  while  no  such 
implication  can  arise  from  failure  to  dissent  from  an  un- 
authorized act  of  a  stranger.^"  ''In  general,"  said  the 
court,  in  an  Illinois  case,  "where  an  agent  is  authorized  to 
do  an  act,  and  he  transcends  his  authority,  it  is  the  duty  of 
the  principal  to  repudiate  the  act  as  soon  as  he  is  fully  in- 
formed of  what  has  been  thus  done  in  his  name  by  the 
agent,  else  he  will  be  bound  by  the  act  as  having  ratified  it 
by  implication;  but  where  a  stranger,  in  the  name  of  an- 
other, does  an  unauthorized  act,  the  latter  need  take  no  no- 
tice of  it,  although  informed  of  the  act  thus  done  in  his 
name,  and  he  shall  only  be  bound  by  af^rmativo  ratifica- 
tion. "^°  No  such  hard  and  fast  rule,  however,  can  be 
adopted.  Circumstances  may  be  such  that  mere  silence 
will  justify  an  inference  of  intention  to  ratify  the  unauthor- 

the  sale  of  a  car  load  of  flour  would  be  unreasonable.  Holloway. 
V.  Arkansas  City  Milling  Co.,  77  Kan.  76,  93  Pac.  577. 

07  Forbes  v.  Hagman,  75  Va.  168;  Pollock  v.  Gantt,  69  Ala.  373, 
44  Am.  Rep.  519. 

08  Ward  v.  Williams,  26  111.  447,  79  Am.  Dec.  385. 

08  Searing  v.  Butler,  69  111.  575.  Should  a  stranger,  without 
authority,  assume  to  act  as  agent  for  another,  it  would  be  in- 
tolerable If  such  other  would  be  bound  to  compensate  the  inter- 
loper for  his  services  unless  he  gave  notice  of  his  dissent  Kelly 
y.  PhHps,  57  Wis.  425,  15  N.  W.  385. 

TO  Ward  v.  Williams,  supra. 


RATIFICATION.  83 

ized  act  of  a  stranger;''^  though,  of  course,  as  said  by 
Story,  "the  presumption  is  far  less  strong,  and  the  mere 
fact  of  acquiescence  may  be  deemed  far  less  cogent,  where 
no  relation  of  agency  exists  at  the  time  between  the  par- 
ties." ■'^  The  intention  of  the  person  is  the  controlling  fac- 
tor, and  any  conduct,  at  the  best,  is  but  evidence  of  thi^ 
intention.  The  relation  of  the  parties  affects  merely  the 
weight  of  the  evidence."^ 

§  59.  Estoppel.  IMany  of  the  cases  of  implied  ratifica- 
tion might  be  based  on  the  doctrine  of  estoppel;  for  if  a 
person  by  his  act  or  conduct,  knowingly  or  negligently,  leads 
another  to  believe,  and  to  act  upon  the  belief,  that  he  had 
authorized  a  particular  act,  such  person  will  be  estopped  to 
deny  such  authorization.'*  In  many  instances,  however, 
implied  ratification  might  be  established,  where  all  the  con- 
ditions necessai-y  to  constitute  an  estoppel  would  not  be 
present.  The  former  doctrine,  therefore,  is  not  merely  an 
application  of  the  latter." 

71  Heyn  v.  O'Hagen,  60  Micli.  150,  26  N.  W.  861;  Robbins  v. 
Blandins,  87  Minn.  246,  91  N.  W.  844;  Savelaud  v.  Green,  40  Wis. 
431. 

>2  Story  on  Agency,  §  256. 

73  Ladd  V.  Hindebrant,  27  Wis.  135,  9  Am.  Rep.  445.  The  prior 
relations  of  the  parties  lend  great  importance  to  the  fact  of  silence, 
but  it  is  a  mistake  to  make  the  competency  of  the  fact  depend  on 
those  relations.  It  is  one  thing  to  say  that  the  law  will  not  imply 
a  ratification  from  silence,  and  a  very  different  thing  to  say  that 
silence  is  a  circumstance  from  which,  with  others,  a  jury  may  not 
imply  it.  Philadelphia,  etc.,  R.  Co.  v.  Cowell,  28  Pa.  St.  329,  70 
Am.  Dec.  128. 

7-1  Vicksburg  &  M.  R.  Co.  v.  Ragdale,  54  Miss.  200;  Smith  v.  Flet- 
cher, 75  Minn.  189,  77  N.  W.  800. 

75  Thus,  a  person  could  probably  set  up  a  ratification  who  has 
not  been  prejudiced  by  delay  in  disaffirming  an  unauthorized  act. 


84  THE  LAW  OF  AGENCY. 

§  60.  Knowledge  of  material  facts.  Ratification  is  but 
the  giving  of  assent  to  an  unauthorized  act  or  contract,  and 
since  it  would  be  impossible  to  assent  to  facts  of  the  exist- 
ence of  which  one  had  no  knowledge,  the  rule  is  established 
that  a  person  will  not  be  bound  by  an  apparent  ratification 
of  an  unauthorized  transaction,  unless  he  adopts  the  same 
with  knowledge  of  all  the  material  facts  connected  there- 
with.'^^ So,  acts  or  conduct  will  give  rise  to  an  inference 
of  intention  to  ratify,  only  when  inconsistent  with  the  exist- 
ence of  a  contrary  intention.  Thus,  where  a  principal  au- 
thorized the  sale  of  shares  of  stock,  for  a  stated  sum,  but  in- 
structed his  agent  to  reserve  the  right  to  a  dividend,  and 
these  instructions  were  violated,  acceptance  of  payment, 
without  knowledge  of  the  fact,  would  not  amount  to  ratifica- 
tion of  unauthorized  assignment  of  the  dividend.'^''  Such  ac- 
ceptance is  not  inconsistent  with  an  intention  not  to  ratify. 
So,  ratification  of  an  unauthorized  execution  of  a  note  will 
not  bind  the  principal  by  an  unknown  stipulation  to  pay  at- 
torney fees ;  '^^  and  where  property  has  been  sold  by  an  agent 
with  an  unauthorized  warranty,  acceptance  by  the  owner 
of  proceeds  of  the  sale,  without  knowledge  of  the  warranty, 

"'i  Owings  V.  Hull,  9  Pet.  (U.  S.)  GOT;  Craighead  v.  Peterson^ 
72  N.  Y.  279;  Aetna  Ins.  Co.  v.  Iron  Co.,  21  Wis.  458;  Sill  v.  Pate, 
230  111.  39,  82  N.  E.  356;  Daley  v.  Iselin,  218  Pa.  St.  515,  67  Atl. 
837;  Case  v.  Hammond  Packing  Co.,  105  Mo.  App.  168,  79  S.  W. 
732.  Acceptance  of  a  deed  by  grantees  is  not  a  ratification  of 
fraudulent  acts  of  a  notary  in  procuring  execution  thereof,  where 
it  was  not  shown  that  the  grantees  had  knowledge  of  such  fraud. 
Cason  V.  Cason,  116  Tenn.  173,  93  S.  W.  89. 

77  Wheeler  v.  Sleigh  Co.,  39  Fed.  347. 

78  Brown  v.  Bramherger,  110  Ala.  342,  20  South.  114.  But  where 
a.  principal  receives  and  retains  a  note,  he  is  bound  by  nnauthor- 
i/.od  stipulations  therein.  Wheeler  &  Wilson  Mfg.  Co.  v.  Aughey, 
144  Pfi.  Sr.  :!ftX,  22  Atl.  667. 


RATIFICATION.  85 

will  not  necessarily  amount  to  a  ratification  tliereof.'^'  So 
generally,  ratification  can  never  be  inferred  from  acts  or 
declarations,  if  at  the  time  of  doing  the  acts  or  making  the 
declarations,  the  principal  had  no  knowledge  that  the 
agent  had  performed  the  acts  claimed  to  have  been  ratified.^** 
In  concluding  this  branch  of  the  subject,  it  may  be  stated 
that  where  circumstances  indicate  an  intention  to  adopt  an 
unauthorized  act,  regardless  of  the  material  facts,  the  prin- 
cipal will  be  boiuad  by  his  reckless  ratification.*^  He  can 
not  escape  liability  by  purposely  closing  his  eyes.  Thus 
where  a  principal  enters  into  possession  under  an  unauthor- 
ized lease,  deliberately  refraining  from  ascertaining  its 
terms,  he  undoubtedly  would  be  bound  by  all  its  reasonable 
provisions.®^  "Where,  however,  the  contract  was  such  as  the 
agent  had  authority  to  make,  and  there  was  no  reason  to 
suppose  that  he  had  departed  from  his  instructions,  accept- 
ance of  its  benefits  would  not  indicate  an  intention  to  ratify 
unauthorized    terms. ®^     Ordinary   negligence    or   omission 

79  Richmond  Trading  Co.  v.  Farquar,  8  Blackf.  (Ind.)  89; 
Smith  V.  Tracy,  36  N.  Y.  79.  But  see  Phillips-Buttorff  Mfg.  Co. 
V.  Wild  Bros.,  144  Ala.  545,  39  South  359. 

80  Coombs  V.  Scott,  12  Allen  (Mass.),  493;  Davis  v.  Talbot,  137 
Ind.  235,  36  N.  E.  1098;  Munroe  v.  Fette,  1  Cal.  App.  333,  82  Pac. 
206;  Cowan  v.  Sargent  Mfg.  Co.,  141  Mich.  87,  104  N  W.  377. 
There  can  be  no  ratification  of  a  contract  by  a  party  who  had  no 
knowledge  of  its  existence.  Wood  v.  Palmer,  151  Mich.  30,  115 
N.  W.  242. 

81  Jewell  Nursery  Co.  v.  State,  5  S.  D.  623,  59  N.  W.  1025;  Lynch 
V.  Smyth,  25  Colo.  103,  54  Pac.  634;  Heinzerling  v.  Agen,  46  Wash. 
390.  90  Pac.  262.  Where  a  principal  ratifies  an  act  of  his  agent, 
knowing  that  he  is  ignorant  of  essential  facts,  he  assumes  the 
risk.    Swisher  v.  Palmer,  106  111.  App.  432. 

82  Ehrmanntraut  v.  Robinson,  52  Minn.  333,  54  N.  W.  188. 

83 Roberts  v.  Rumley,  58  Iowa,  301,  12  N.  W.  323;  Clement  v. 
Young-Shea  Amusement  Co.,  70  N.  J.  Eq.  677,  67  Atl.  82.    A  prin- 


86  THE  LAW  OF  AGENCY. 

will  not,  of  itself,  raise  an  implication  of  intention  to  ratify 
regardless  of  facts;  such  implication  arises  only  in  excep- 
tional cases.^* 

§  61.  Ratification  in  part.  It  is  fundamental  that  an 
unauthorized  act  or  contract  of  an  agent  can  not  be  affirmed 
in  part  and  disaffirmed  in  part.^°  A  principal  can  not 
adopt  just  so  much  of  an  agent's  unauthorized  act  as  would 
be  beneficial  to  him.^^  Thus  where  an  agent,  without  au- 
thority, borrowed  money  for  his  principal  and  executed  a 
mortgage  to  secure  the  loan,  the  principal  could  not  ratify 
the  loan  and  repudiate  the  mortgage ;  *^  so  where  an  agent, 
by  a  single  contract,  agreed  to  the  sale  of  a  mill  and  articles 
used  in  connection  therewith,  the  principal  could  not  affirm 
the  contract,  and  at  the  same  time  assert  that  the  agent  had 
authority  to  sell  only  the  mill.^*'     The  rule  applies,  of  course, 

cipal  may  usually  assume  that  his  agent  has  obeyed  instructions. 
In  re  Johnson,  102  Minn.  8.  112  N.  W.  894. 

84  Murray  v.  Lumber  Co.,  143  Mass.  250,  9  N.  E.  634;  Valley 
Bank  v.  Brown,  9  Ariz.  311,  83  Pac.  362.  The  principal  is  not 
thargp.able  with  information  which  by  diligence  he  could  have  ac- 
quired, if  not  wilfully  ignorant.  Shepard  &  Morse  Lumber  Co.  v. 
Eldriclge,  171  Mass.  516,  51  N.  E.  9. 

85  Warren  v.  Hayes,  74  N.  H.  355,  68  Atl.  193;  Shinn  v.  Guyton 
&  Herrington  Mule  Co.,  109  Mo.  App.  557,  83  S.  W.  1015;  McChire 
Bros.  V.  Briggs,  58  Vt.  82,  2  Atl.  583. 

86  Stark  V.  Starr,  94  U.  S.  477;  McLeod  v.  Despain.  49  Ore.  536, 
92  Pac.  1088.  Where  the  principal  takes  the  benefits  of  an  un- 
authorized bargain  of  his  agent,  he  must  adopt  the  contract  as 
made.    Singer  Mfg.  Co.  v.  Christian,  211  Pa.  St.  534,  60  Atl.  1087. 

87  Krider  v.  Western  College,  31  Iowa,  547.  So,  a  party  can  not 
retain  the  benefits  of  his  agent's  fraudulent  conduct  without  being 
chargf'd  with  the  Instrunienlalities  employed  to  effect  the  purpose. 
McKf'ighan  v.  Ilopkins,  19  Neb.  33,  26  N.  W.  614. 

««  Elizabethtown  M.  &  C.  Co.  v.  Elizabethtown  Milling  Co.,  13 
Ky.  Law  Rfp.  96. 


RATIFICATION.  87 

only  Avhere  the  transaction  was  single  or  the  contract  entire. 
Thus  where  the  o^\^ler  of  lots  reserved  the  right  to  pass 
upoii  sales  thereof  by  an  agent,  his  adoption  of  a  number 
of  sales  does  not  prevent  his  rejecting  others.^^ 

§  62.  Effect  of  ratification,  (a)  In  general.  A  ratifi- 
cation once  made  is  irrevocable,  and  binds  the  principal 
as  effectually  as  though  he  had  given  precedent  authority.®" 
On  the  theory  that  ratification  relates  •  back, — the  doctrine 
of  relation  as  it  is  termed — the  principal  and  agent  are  in- 
vested with  the  same  rights  and  obligations  as  would  have 
existed  had  the  act  ratified  been  precedently  authorized.^^ 
The  doctrine  of  relation  is  not  pushed  so  far  as  to  affect 
intervening  rights  of  strangers,®^  and,  so  the  situation  of 
third  parties  with  whom  the  unauthorized  agent  dealt  is  not 
in  all  cases  rendered  the  same  by  ratification  as  it  would 
have  been  had  the  agent,  in  dealing  with  them,  been  acting 
with  authority.®^ 

(b)  Intervening  rights  of  strangers.  Rights  of 
strangers  which  have  accrued  between  the  act  of  the  agent 
and  its  ratification  will  not  be  defeated  by  application  of 
the  doctrine  of  relation.®*  Thus,  by  ratification  of  a  prior 
unauthorized  sale,   a  principal  could  not  defeat  a  subse- 

89  Burlington,  etc.,  Ry.  Co.  v.  Sherwood,  62  Iowa,  309,  17  N.  W. 
564. 

90  Johnson  v.  Hoover,  72  Ind.  395;  Coffin  v.  Gephart,  18  Iowa, 
256;  Andrews  v.  Aetna  Life  las.  Co.,  92  N.  Y.  596;  Russ  v.  Tel- 
fener,  57  Fed.  973. 

91  Post  §  64. 

92  Post  §  62   (b). 

93  Post  §  63. 

94  Cook  V.  Tullis,  18  Wall.  (U.  S.)  332;  Fisk  v.  Holmes,  41  Me. 
441;  Norton  v.  Alabaj_a  Nat  Bank,  102  Ala.  420,  14  South.  872. 


88  THE  LAW  OF  AGENCY. 

quent  valid  sale  of  the  property,'"  nor  intervening  incum- 
brances that  have  attached  thereto.^* 

§  63.  Effect  between  principal  and  third  party,  (a)  In 
general.  From  the  time  of  ratification  the  principal  be- 
comes the  responsible  party  and  is  subject  to  the  same  obli- 
gations as  would  have  arisen  had  the  unauthorized  act  or 
contract  been  precedently  authorized.®^  Conversely,  how- 
ever, it  has  been  held  that  the  other  party  to  the  transac- 
tion can  not  be  bound,  against  his  will,  by  a  ratification, 
unless  he  has  assented  to  the  same.®* 

(b)  Acts.  Ratification,  as  we  have  seen,  may  be  of  an 
act  or  of  a  contract.  In  the  former  case,  where  the  unau- 
thorized act  of  an  agent  was  of  such  a  nature  that  it  would, 
if  authorized,  have  entitled  the  principal  to  have  some  act 
performed  by  a  third  person,  liability  for  nonperformance 
can  not  be  created  against  such  third  person  by  ratifica- 
tion.®® Thus  an  unauthorized  notice  to  quit  can  not  be 
made  binding  upon  a  tenant  by  subsequent  ratification ;  ^°° 

96  Parmelee  v.  Simpson,  5  Wall.  (U.  S.)  81;  McDonald  v.  McCoy, 
121  Cal.  55,  53  Pac.  421. 

seWood  V.  McClain,  7  Ala.  806,  42  Am.  Dec.  612;  Pollock  v. 
Cohen,  32  Ohio  St.  514.  Thus,  where  an  agent  to  collect  takes  a 
deed  in  payment,  without  authority,  and  the  land  is  later  attached 
by  another  creditor,  the  latter's  right  will  not  be  defeated  by  a 
subsequent  ratification  of  the  deed.  Kempner  v.  Rosenthal,  81 
Tex.  12,  16  S.  W.  639. 

07  Conro  V.  Port  Henry  Iron  Co.,  12  Barb.  (N.  Y.)  27;  United 
States  Express  Co.  v.  Rawson,  106  Ind.  215,  6  N.  E.  337. 

98  Dodge  V.  Hopldns,  14  Wis.  630. 

»»  Story  on  Agency,  §  246. 

looBrahn  v.  Forge  Co.,  38  N.  J.  Law,  74;  PIckard  v.  Perley,  45 
N.  H.  188.  80  Am.  Dec.  153.  The  tenant  is  entitled  to  such  notice 
as  he  could  act  upon  with  certainty  at  the  time  It  was  given,  and 
is  not  hound  to  submit  himself  to  the  hazard  whether  the  landlord 
win  ratify  or  not.    Right  v.  Cuthell,  5  East  (Eng.),  491- 


RATIFICATION.  89 

SO  an  unauthorized  demand,  though  subsequently  ratified, 
will  not  be  sufficient  to  support  a  suit  in  which  demand  is 
necessary ;  ^°^  and  the  unauthorized  bringing  of  a  suit, 
usually,  can  not  be  ratified.^"-  In  these  cases  it  would  man- 
ifestly be  unjust  to  give  to  ratification  the  effect  of  previous 
authority,  since  the  third  person,  not  knowing  whether  the 
act  will  be  ratified,  would  have  to  perform  at  his  own  risk, 
and  would  be  without  protection  were  the  act  of  the  agent 
disavowed  by  the  principal. ^°^ 

(c)  Contracts.  Without,  apparently,  so  much  reason, 
the  rule  has  been  extended  to  executory  contracts ;  and  ac- 
cording to  accepted  authority,  a  principal  can  not,  by  rati- 
fication of  an  executory  contract,  build  up  affirmative  rights 
against  the  other  party  unless  the  latter  acquiesce  in  the 
ratification.^"*  The  obligation  of  a  contract,  it  is  contended, 
must  be  mutual, — both  parties  must  be  bound  or  neither. 
"Where  an  agent  acts  without  authority  the  principal  is 
not  bound,  and  neither,  as  a  consequence,  is  the  third  party. 
The  principal,  it  is  true,  by  ratification  may  give  his  as- 
sent to  the  contract,  but  this  should  not  operate  to  bind  the 
other  party  until  he,  too,  assents.  ''The  principal  may,  by 
his  subsequent  assent,  bind  himself;  but  if  the  contract  be 
executory,  he  can  not  bind  the  other  party.     The  latter 

101  story  on  Agency,  §  247.  It  has  been  held,  however,  that 
bringing  suit  on  an  unauthorized  demand  will  ratify  it  unless  au- 
thority to  make  it  had  been  questioned  at  the  time  by  the  person 
upon  whom  it  was  made.  Ham  v.  Boody,  20  N.  H.  411,  51  Am. 
Dec.  235. 

102  Dingley  v.  McDonald,  124  Cal.  682,  57  Pac.  574.  But,  see. 
Persons  v.  McKibben,  5  Ind.  261,  61  Am.  Dec.  85. 

103  Tiffany  on  Agency,  p.  18. 

104  Dodge  V.  Hopkins,  14  Wis.  630;  Atlee  v.  Bartholomew,  69 
Wis.  43,  33  N.  W.  110;  Wilkinson  v.  Heavenrich,  58  Mich.  574; 
Cowan  V.  Curran,  216  111.  598,  75  N.  E.  322. 


90 


THE   LAW   OF   AGENCY. 


may,  if  he  choose,  avail  himself  of  such  assent,  as  against 
the  principal;  wliich  if  he  does,  the  contract,  by  virtue  of 
such  mutual  ratification,  becomes  mutually  obligatory. ' '  ^°^ 
A  contrary  doctrine  would  in  many  instances  give  unfair 
advantage  to  a  principal,  as  in  a  case  where  he  is  induced 
to  ratify  an  unauthorized  sale  solely  because  the  property 
has  subsequently  been  destroyed.  On  principle,  however, 
it  would  seem  that  a  ratification  should  bind  the  third  party ; 
for  by  entering  into  the  contract  with  the  agent,  under  be- 
lief that  the  principal  is  the  real  party,  such  third  person 
gives  his  assent  in  advance  to  be  bound,  and  ratification 
makes  the  assent  mutual,  on  much  the  same  theory  that  ac- 
ceptance of  an  offer  creates  mutuality  of  agreement.  And 
after  all,  so  far  as  the  third  person  is  concerned,  ratifica- 
tion merely  brings  into  existence  a  state  of  facts  which  he 
believed  to  exist  at  the  time  he  dealt  with  the  agent  and  en- 
tered into  the  supposed  contract.  This  view  of  the  doctrine 
has  support  of  some  authority.^"® 

§  64.  Effect  on  agent.  Ratification  of  an  unauthorized 
act  vests  the  agent  with  the  same  rights  that  would  have 
existed  had  the  act  been  authorized.^°^  He  may  look  to 
the  principal  for  compensation,^"®  and  is  absolved  from  re- 


105  Dodge  V  Hopkins,  14  Wis.  630. 

IOC  Hammond  v.  Hannin,  21  Mich.  374,  4  Am.  Rep.  490;  McClin- 
tock  V.  Oil  Co.,  14G  Pa.  St.  144,  23  Atl.  211.  See  Rogers  v.  Knee- 
land,  10  Wend.  (N.  Y.)  218;  Bellinger  v.  Collins,  117  Iowa,  173,  90 
N.  W.  009;  Hill  v.  McMunn,  232  111.  488,  S3  N.  E.  963. 

107  Wilson  V.  Dame,  58  N.  H.  392;  Goss  v.  Stevens,  32  Minn.  472, 
21  N.  W.  549. 

108  u.  S.  Mortgage  Co.  v.  Henderson,  111  Ind.  24,  12  N.  E.  88. 
Where  a  real  estate  agent  exceeds  his  authority  in  making  a  sale, 
upon  ratification,  the  compensation  fixed  in  the  original  contract 
of  frnployment  fontrols.  Celntt  v.  Ridge,  117  Mo.  r>r>?,.  23  S.  W.  882. 


RATIFICATION.  91 

sponsibility  for  the  unauthorized  transaction.^""  Where, 
however,  a  principal  ratifies  an  act,  done  in  violation  of 
instructions,  merely  to  avoid  or  reduce  a  loss  therefrom, 
the  agent  would  scarcely  be  heard  to  claim  the  benefit  of 
an  application  of  the  doctrine  of  relation. ^^*'  Where  an 
agent  acts  in  behalf  of  another,  he  warrants  his  authority 
to  third  persons  with  whom  he  deals,  and  if  he  has  no  au- 
thority would  be  liable  in  damages  for  breach  of  this  war- 
ranty.^^^  Ratification,  being  equivalent  to  precedent  au- 
thorization, would  relieve  the  agent  from  such  liability.^^- 

109  Pickett  V.  Pearson,  17  Vt.  470;  Hanks  v.  Drake,  49  Barb. 
(N.  Y.)  186;  Menkens  v.  Watson,  27  Mo.  163.  Where  an  agent  sells 
goods  for  less  than  the  authorized  price,  ratification  relieves  him 
of  liability  for  the  difference.  Hollaway  v.  Arkansas  City  M.lling 
Co.,  77  Kan.  76,  93  Pac.  577, 

iioTriggs  V.  Jones,  46  Minn.  277,  48  N,  W.  1113;  Walker  v. 
Walker,  5  Heisk.  (Tenn.)  425. 

111  Post  §  137. 

112  Bergen's  Appeal,  96  Pa.  St.  443.  If  the  unauthorized  act  was 
a  tort,  ratification  does  not  relieve  the  agent  of  joint  liability. 
Richardson  v.  Kimball,  28  Me.  463. 


CHAPTER  VI. 

TERMINATION  OP  AGENCY. 

8  65.  In  general. 

66.  By  original  agreement. 

67.  By  act  of  parties. 

68.  Revocation  of  authority. 

(a)  In  general. 

(b)  Power  distinguished  from  right  to  revoke, 

69.  How  revocation  is  effected. 

(a)  As  against  agent. 

(b)  As  against  third  parties. 

70.  Irrevocable  powers. 

71.  Renunciation  by  agent. 

72.  Termination  by  law. 

73.  Death. 

(a)  Of  principal. 

(b)  Of  agent. 

(c)  Power  coupled  with  Interest. 

(d)  Hunt  V.  Rousmanler. 

74.  Insanity. 

(a)  Of  principal. 

(b)  Of  agent. 

75.  Bankruptcy. 

(a)  Of  principal. 

(b)  Of  agent. 

76.  Marriage. 

77.  War. 

§  65.  In  general.  An  agency,  as  we  have  seen,  can  be 
created  only  by  act  of  the  parties,  as  by  appointment  and 
dcccptance,  rfxtification,  or  conduct  of  the  principal  which 
givea  rise  to  an  estoppel.  The  relation  may  be  terminated 
by  voluntary  act  of  either  party,  or  in  pursuance  of  th(> 
oiiginal  agreement  between  them;  and  so,  upon  the  occiii 


TERMINATION  OF  AGENCY.  93 

Tcnce  of  certain  conditions,  such  as  the  death  or  insanity 
of  either  principal  or  agent,  the  relation  terminates  by 
operation  of  law.  Stated  in  general  terms,  an  agency  may 
be  terminated :  1,  By  original  agreement ;  2,  By  act  of  the 
parties ;  3,  By  operation  of  law. 

§  66.  By  original  agreement.  Where  under  the  express 
or  implied  terms  of  appointment,  an  agency  is  to  endure 
only  for  a  stated  time,  or  until  the  happening  of  a  stated 
event,  the  expiration  of  such  time,  or  the  happening  of  such 
event,  will,  of  course,  terminate  the  relation.^  Thus,  where 
an  agent  is  appointed  for  the  period  of  one  j^ear,  the  agency 
will  terminate  at  the  expiration  of  the  year ;  -  and  where  a 
person,  about  to  depart  on  a  voyage,  appoints  an  agent  to 
act  for  him  during  his  absence,  the  agency  terminates  upon 
return  of  the  principal.^  So,  where  an  agent  is  employed 
for  the  performance  of  a  particular  act,  accomplishment  of 
the  purpose  of  the  agency  necessarily  terminates  the  rela- 
tion; *  and  the  effect  would  be  the  same  where  the  principal 
himself  performed  the  act  or  caused  it  otherwise  to  be  per- 
formed.^    Thus,  where  an  agent  to  sell  land,  in  good  faith 

1  Oregon  Mortgage  Co.  v.  American  Mortgage  Co.,  35 -Fed.  22; 
Gundlach  v.  Fischer,  59  111.  172. 

2  Clements  v.  Maclieboeuf,  92  U.  S.  418. 

3  Danby  v.  Coutts,  L.  R.  29  Ch.  Div.  500. 

*  People  V.  Manistee  County  Com'rs,  40  Mich.  585;  Greening  v. 
Steele,  122  Mo.  287,  26  S.  W.  971.  After  completion  of  a  transac- 
tion, a  declaration  of  an  agent  is  not  binding  on  the  principal. 
Atlanta  Sav.  Bank  v.  Spencer,  107  Ga.  629,  33  S.  E.  878. 

5  Ahern  v.  Baker,  34  Minn.  98,  24  N.  "W.  341;  Gilbert  v.  Holmes, 
64  111.  548;  Kelly  v.  Brennan,  55  N.  J.  Eq.  423,  37  Atl.  137.  Where 
the  treasurer  of  a  town  was  authorized  to  borrow  money  to  ad- 
just a  tax  and  the  same  was  adjusted  before  he  acted,  his  au- 
thority ceased.  Benoit  v.  Inhabitants  of  Conway,  10  Allen 
(Mass.),  528. 


9-1  THE    LAW   OF   AGENCY. 

effected  the  sale  thereof,  he  was  not  precluded  shortly  there- 
after from  himself  purchasing  the  land,  since  he  no  longer 
occupied  the  relation  of  agent  to  the  original  owner ;  ^  and 
so,  where  an  agent,  authorized  to  sell  land,  effected  a  sale, 
but  in  the  meantime  the  principal,  through  another  agent, 
had  conveyed  the  land  to  a  different  person,  the  sale  by  the 
first  agent  was  without  effect  and  an  action  thereunder  for 
breach  of  contract  could  not  be  sustained/  The  rule  would 
be  the  same  where  the  subject  matter  became  extinct,  as  in 
the  case  of  the  destruction  of  a  ship  which  an  agent  had 
been  authorized  to  sell;  for  clearly,  unless  a  contrary  inten 
tion  is  manifested,  a  condition  is  to  be  implied  that  the  au 
thority  shall  continue  only  so  long  as  the  ship  continues 
to  exist.* 

§  67.  By  act  of  the  parties.  Except  where  a  power  is 
given  for  a  valuable  consideration,  a  condition  to  be  sep- 
arately discussed,'*  the  principal  may,  at  will,  revoke  author- 
ity vested  in  an  agent  and  thus  terminate  the  relation ;  and 
the  same  effect  may  be  accomplished  by  renunciation  of  the 
agency  by  an  agent. 

§  68.  Revocation  of  authority,  (a)  In  general.  It  is 
elementary  that  one  man  can  not  bind  another  by  act  or 
contract  without  that  other's  assent;  and  such  assent,  in 
order  to  be  effective,  must  exist  at  the  moment  the  act  is 
perfomed  or  the  contract  is  entered  into.  Plence,  though 
authority  has  been  given  an  agent  to  perform  an  act  or 
make  a  contract  in  behalf  of  a  principal,  the  act  or  contract 

8  Monro  v.  Hlone.  40  Iowa,  259;  Short  v.  Millard,  68  111.  292. 
TAhorn  v.  Balier,  31  Minn.  9S.  24  N.  W.  341. 

•  Story  on  Agency,  §  499. 

•  Post  §  70. 


TERMINATION  OF  AGENCY.  95 

will  not  bind  the  principal  if  the  authority  has  been  with- 
drawn before  its  exiecution ;  for  in  such  a  case,  assent  to  be 
bound  would  not  exist  at  the  moment  the  act  was  done  or 
the  contract  was  entered  into.  At  any  time  before  its  exe- 
cution, a  principal  may  revoke  authority.  The  law  will  not 
force  him  against  his  will  into  what  is  essentially  a  volun- 
tary transaction  merely  because  at  a  prior  time  he  had  in- 
licated  a  willingness  to  enter  into  the  same  by  appointing 
an  agent  to  represent  him.  Subject  to  an  exception,  to  be 
separately  noted,^°  it  is  the  rule,  then,  that  at  any  time  be- 
fore its  execution,  a  principal  may  revoke  authority  vested 
in  an  agent  and  thus  terminate  the  relation ;  even  though 
he  may  have  contracted  with  the  agent  for  its  longer  con- 
tinuance.^^ Thus,  authority  of  an  auctioneer,  or  of  a  broker, 
may  be  revoked  at  any  time  before  the  goods  are  sold,^^ 
nnd  a  subsequent  sale  will  not  be  binding  on  the  principal.^^ 
Where  money  is  given  an  agent  to  pay  a  debt  due  a  third 
person,  the  same  may  be  recalled  at  any  time  before  it 
reaches  the  hand  of  the  creditor ;  ^^  and,  so,  until  acceptance 
by  the  principal's  creditors  of  an  arrangement  whereby  an 
f'gent  is  to  sell  the  principal's  goods  and  apply  the  proceeds 

10  Post  §  70. 

iiBlackstone  v.  Buttermore,  53  Pa.  St.  266;  Willcox  &  Gibbs 
Sewing  Mach.  Co.  v.  Ewing,  141  U.  S.  627;  Strong  v.  Buffalo  Land 
r.o.,  203  U.  S.  582;  McMahan  v.  Burns,  216  Pa.  St.  448,  65  Atl.  806; 
Phillips  V.  Howell,  60  Ga.  411. 

12  Manser  v.  Back,  6  Hare  (Eng.),  443;  Hoover  v.  Perkins  Wind- 
mill Co.,  41  Minn.  143,  42  N.  W.  806. 

18  Brown  v.  Pforr,  38  Cal.  550;   Story  on  Agency,  §  465. 

1*  Howard  College  v.  Pace,  15  Ga.  486;  Simonton  v.  First  Nat. 
Bank,  24  Minn.  216;  Flaherty  v.  O'Connor,  24  R.  I.  587,  54  Atl. 
376.  One  who  has  intrusted  an  agent  with  a  sum  of  money  to 
settle  a  law  suit  between  two  others,  has  the  power  of  revocation 
until  the  settlement  is  complete.     Phillips  v.  Howell,  60  Ga.  411. 


96  THE   LAW   OF   AGENCY. 

in  payment  of  certain  debts,  the  authority  given  the  agent 
is  subject  to  revocation. ^^ 

(b)  Power  distinguished  from  right  to  revoke.  Where 
an  agent  is  employed  for  a  stated  term,  or  is  given  exclusive 
right  to  perform  an  act,  revocation  of  authority  may  amount 
to  breach  of  the  contract  subsisting  between  principal  and 
agent;  and  to  meet  this  situation,  the  authorities  distin- 
guish between  what  they  term  the  po^ver  to  revoke  and 
the  right  to  revoke.^^  This  seems  an  unnecessary,  and  may 
prove  a  confusing,  distinction  of  words.  All  that  it  merns 
is,  that  though  a  principal  has  the  power  or  the  right  to  re- 
voke an  authority,  such  power  does  not  carry  with  it  the 
right  to  break,  with  impunity,  a  contract  with  his  agent. 
Hence  if  a  revocation  of  authority  incidentally  involves,  or 
results  in,  the  breach  of  a  contract  of  employment,  the  prin- 
cipal is  liable  in  damages  to  his  agent  for  such  breach  of 
contract.^'^  AVhether  or  not  in  a  particular  instance  revoca- 
tion of  authority,  or  discharge  of  an  agent,  violates  a  con- 
tract of  employment  must  be  determined  from  construction 
of  such  contract ;  and  this  phase  of  the  case  will  be  governed 
by  the  law  of  contracts,  rather  than  by  rules  peculiar  to 
the  law  of  agency." 

§  69.  How  revocation  is  effected,  (a)  As  against  agent. 
The  law  docs  not  take  cognizance  of  a  man's  intentions  until 
they  have  l)ecn  given  expression.     Hence  revocation  of  an 

"Comley  v.  Dazian,  114  N.  Y.  IGl,  21  N.  E.  135. 

i«  Mechem  on  Agency,  §  209. 

17  Kilpatrick  v.  Wiley,  m  Mo.  123,  95  S.  W.  213;  Standard 
Oil  Co.  V.  Clilhert,  84  Ga.  714,  11  S.  E.  491;  CofTin  v.  Land;.,,  46  Pa. 
St.  420. 

1"  IJishop  on  Contracts,  §  838.  An  employment  is  deemed  to  be 
at  will  unless  the  contract  expressly  or  by  clear  Implication  pro- 
vides for  a  fixed  term;   and  so  the  principal  may  discharge  an 


TERMINATION  OF  AGENCY.  97 

agent's  authority  is  not  effective  against  him  until  notice 
of  revocation  is  in  some  way  communicated  to  him.^®  Any 
form  of  words  that  indicates  an  intention  to  revoke  will  be 
sufficient. -°  Thus,  the  words  ''I  am  verj'  sorry  to  have  to 
ask  you  to  resign  your  position"  would  be  a  sufficient  form 
of  revocation.^^  So,  authority  conferred  by  deed  may  be 
revoked  by  parol.^^  Kevocation  of  authority  may  also  be 
implied  from  acts  or  circumstances.^^  Thus,  where  a  second 
appointment  would  be  clearly  incompatible  with  continu- 
ance of  the  first,  a  grant  of  power  to  another  agent  to  do  the 
same  act  would  amount  to  revocation  of  the  former  agent's 
authority.-*  So,  disposition  by  the  principal  of  the  subject 
matter  of  the  agency  would  impliedly  revoke  the  same,  as 
where  he  himself  sells  property  which  the  agent  was  au- 
thorized to  seU.^^  And  authority  to  represent  a  partner- 
ship, or  the  joint  owners  of  land,  would  be  impliedly  re- 
agent -without  liability  for  misconduct  or  incompetency.  See, 
Mechem  on  Agency,  §  211. 

19  Jones  V.  Hodgkins,  61  Me.  480;  Robertson  v.  Cloud,  47  Miss. 
208;   Best  v.  Gunther,  125  Wis.  518,  104  N.  Vv^.  82. 

20  Kelly  V.  Brennan,  55  N.  J.  Eq.  425,  37  Atl.  137.  Where  an 
agent  to  buy  wool  telegraphed  his  principal  in  regard  to  the  pur- 
chase of  a  certain  lot,  a  reply  that  he  had  better  not  take  it,  re- 
voked his  authority  to  buy.  First  Nat.  Bank  v.  Hall,  8  Mont.  341, 
20  Pac.  638. 

21  Jones  V.  Graham,  etc.,  Transp.  Co.,  51  Mich.  539. 

22  Brookshire  v.  Brookshire,  30  N.  C.  74.  47  Am.  Dec.  341. 

23  Copeland  v.  Insurance  Co.,  6  Pick.  (Mass.)  198;  Chenault  v. 
Quisenberry  (Ky),  57  S.  W.  234.  Where  a  person  assigned  a 
claim  for  personal  injuries  and  executed  a  pov>er  to  release  the 
same,  such  power  was  impliedly  revoked  by  the  grantor  subse- 
quently commencing  suit  on  the  claim.  Flynn  v.  Butler,  189 
Mass.  377,  75  N.  E.  730. 

2iDavol  v.  Quimby,  11  Allen  (Mass.)  208;  Enright  v.  Beau- 
mond,  68  Vt.  249,  35  Atl.  57. 

25  Gilbert  v.  Holmes.  64  111.  548;  Walker  v.  Denison.  86  111.  142, 


98  THE    LAW   OF   AGENCY, 

voked  by  dissolution  of  the  partnership,  or  severance  of  the 
joint  interest. -^ 

(b)  As  against  third  persons.  Revocation  of  authority, 
from  the  moment  of  its  communication  to  the  agent,  termi- 
nates the  relation  between  him  and  the  principal,  but  such 
revocation  will  not  be  effective  against  third  parties,  to 
whom  the  agent  has  been  held  out  as  having  authority,  until 
notice  of  revocation  has  been  communicated  to  them.-^  This 
rule  rests  on  the  doctrine  of  estoppel  and  is  applicable  only 
where  the  elements  of  estoppel  exist.  Hence  after  revoca- 
tion a  principal  will  be  liable  only  to  such  persons  who 
having  knowledge  of  the  agent 's  authority  dealt  with  him  in 
good  faith  upon  assumption  of  its  continued  existence,  and 
without  reasonable  cause  to  believe  that  the  authority- 
had  been  revoked.^^  Except  in  states  where,  by  statute, 
revocation  of  a  power  to  sell  land  must,  like  the  power 
itself,  be  recorded,-''  any  form  of  notice,  express  or  implied, 
that  puts  third  persons  on  their  guard  will  be  sufficient.^" 
AYhere  an  agent  has  been  held  out  generally  to  the  public 

2«Rowe  V.  Rand,  111  Ind.  206,  12  N.  E.  377;  Callanan  v.  Van 
Vleck,  36  Barb.  (.N.  Y.)  324;  Schlater  v.  Winpenny,  75  Pa.  St. 
321.  Change  of  a  firm's  name  does  not  revoke  an  agency  confer- 
red upon  the  same  persons  under  a  different  name..  Billingsley  v. 
Dawson,  27  Iowa,  210. 

27  Southern  Life  Ins.  Co.  v.  McCain,  96  U.  S.  84;  Wheeler  v. 
McGuire,  80  Ala.  308,  5  South.  190;  Springfield  Engine,  etc.,  Co. 
V.  Kennedy,  7  Ind.  App.  502,  34  N.  E.  856.  A  conveyance  by  virtue 
of  a  power  of  attorney  would  be  good  notwithstanding  prior  re 
vocation  of  the  power  where  the  vendee  had  no  notice  of  such 
revocation.     Hancock  v.  Byrne,  35  Ky.  513. 

zsClafln  V.  Lenhelm.  60  N.  Y.  301;  Packer  v.  Hinckley  Loco- 
motive Works,  122  Mass.  484. 

■■■■nGratz  v.  Improvement  Co.,  27  C.  C.  A.  305,  82  Fed.  381. 

30  Clafln  V.  Lenhelm,  66  N.  Y.  301;  Tier  t.  Lampson,  35  Vt.  170, 
82  Am  nee.  634 


TERMINATION  OP  AGENCY.  99 

as  having  author-ity,  public  notice  of  its  revocation  might 
be  necessary  to  protect  the  principal  ^'  but  where  the  hold- 
ing out  has  been  less  general,  only  those  persons  who  from 
])ersonal  knowledge  of  the  agent's  authority,  or  from  previ- 
ous dealings  with  him,  would  be  likely  to  act  on  the  assump- 
tion that  such  authority  still  existed,  would  be  entitled  to  no- 
tice of  its  revocation.'-  So,  where  an  agent  has  been  au- 
thorized merely  to  do  a  particular  act,  no  dutj^  is  incumbent 
upon  the  principal  to  give  notice  of  revocation,  except,  pos- 
sibly, to  a  person  with  whom  the  agent,  to  the  principal's 
knowledge,  has  actually  opened  negotiations.^' 

§  70.  Irrevocable  povirers.  As  has  been  already  stated, 
a  principal  can  revoke  the  authority  of  an  agent  notwith- 
standing that  such  revocation  involves  the  breach  of  a  con- 
tract of  employment.^'*  The  right  to  continue  in  the  per- 
formance of  an  agency,  though  secured  by  a  valid  contract 
of  employment,  is  not  a  vested  right  of  which  a  person  can 
not  be  deprived,  but  merely  one  for  violation  of  which  dam- 
ages are  given  by  law.  Where,  however,  a  man  secures,  for 
a  valuable  consideration,  either  the  property  of  another, 
the  right  to  control  such  property,  or  to  exercise  a  power 
incidental  to  ownership,  his  interest  is  vested,  and  can  not 
be  divested  by  an  attempted  renunciation  of  the  transaction 
l\y  other  parties  thereto.     So,  generally,  ^vhere  a  man  in 

31  Braswell  v.  American  Ins.  Co.,  75  N.  C.  8;  Fellows  v.  Hart- 
ford, etc.,  Co.,  38  Conn.  197;  McNeilly  v.  Insurance  Co.,  66  N.  Y. 
23. 

32Lamothe  v.  St.  Louis  Dock  Co.,  17  Mo.  204;  Hatch  v.  Cod- 
dington,  95  U.  S.  48;  Wheeler  v.  McGuire,  86  Ala.  398.  5  South. 
190. 

S3  Watts  V.  Kavanaugh,  35  Vt.  34;  Strachan  v.  Muxlow,  24  Wis. 
21. 

34  Ante  §  68. 


100  THE   LAW   OF   AGENCY. 

order  to  secure  a  benefit,  other  than  mere  compensation  as 
agent,  pays  valuable  consideration  for  the  right  to  exercise 
powers  belonging  to  another,  such  right  becomes  vested  in 
liim,  and  is  not  subject  to  revocation  by  the  donor.^^  It  is 
the  rule,  then,  that  a  power  given  for  a  valuable  considera- 
tion to  secure  a  benefit  independent  of  mere  compensation 
as  agent,  vests  in  the. donee  a  legal  interest  in  the  exercise 
of  the  power,  and  the  same  can  not  be  revoked  at  the  will 
of  the  donor.^®  Thus,  where  a  man  in  order  to  secure  a 
loan  gives  another  power,  in  event  of  default,  to  sell  prop- 
erty belonging  to  him  and  to  collect  the  debt  from  proceeds 
of  the  sale,  such  power  could  no  more  be  revoked  by  the 
donor  than  could  a  mortgage  given  to  secure  a  loan ;  ^^  and 
the  rule  would  be  the  same  w^here  an  agent  is  given  author- 
ity to  collect  a  debt  and  out  of  the  proceeds  to  reimburse 
himself  for  money  advanced  to  the  principal.^*  So,  gen- 
erally, an  authority  can  not  be  revoked  by  the  grantor  where 
it  is  given  as  security,^''  or  to  indemnify  a  surety  against 
loss.*"     Nor  is  it  necessary,  to  render  an  authority  irrevo- 

35  As  will  be  seen  in  the  course  of  our  discussion  many  powers 
though  irrevocable  by  the  grantor  will  not  survive  his  death. 
Post  §  73  (c). 

3eBlackstone  v.  Buttermore,  53  Pa.  St.  266;  Hartley's  Appeal, 
53  Pa.  212,  91  Am.  Dec.  207;  Frink  v.  Roe,  70  Cal.  296,  11  Pac. 
820;  Terwilliger  v.  Ontario,  etc.,  Ry.  Co.,  149  N.  Y.  86,  43  N.  E. 
432.  A  power  to  enter  upon  and  sell  land  given  for  a  considera- 
tion of  five  dollars,  has  been  held  irrevocable.  Montague  v.  Mc- 
Carroll,  15  Utah,  318,  4y  Pac.  418. 

•■'7  Hunt  v.  Rousinanier,  8  Wheat.  (U.  S.)  174;  Allen  v.  Davis. 
13  Ark.  28. 

38Marl/,oii  V.  Pioche,  8  Cal.  522;  Hutchins  v.  Hebliard,  34  N.  Y. 
27;  Terwlllinger  v.  Railway  Co.,  149  N.  Y.  80,  43  N.  E.  432. 

"c  Beecht-r  v.  Bennett,  11  Barb.  (N.  Y.)  380;  Evans  v.  Fearno. 
n;  Ala.  689,  50  Am.  Dec.  197;  American  Loan  &  Trust  Co.  v.  Bil 
lingB,  58  Minn.   187,  59  N.  W.  998. 

1"  iryr.soii   V     Nol.iiul.    i4   Ark.  710. 


TERMINATION  OF  AGENCif.  101 

cable  that  the  interest  be  vested  in  Ihe  person  who  is  to  ex- 
ercise the  power;  but  the  beneficiary  may  be  a  third  per- 
son.*^ Thus,  where  a  debtor  authorizes  an  agent  to  sell 
property  and  out  of  the  proceeds  to  pay  a  debt  due  a  third 
person,  the  power  becomes  irrevocable  upon  the  creditor's 
acceptance  of  the  security.*^  IMere  interest  in  the  execution 
of  an  agency,  as  by  way  of  compensation,  is  not  sufficient. 
Thus,  the  fact  that  an  agent  to  sell  land,  or  to  collect  money, 
is  to  have  a  percentage  of  the  proceeds  as  commission  does 
not  secure  his  authority  against  revocation,*^  even  though 
by  the  terms  of  his  contract  of  employment  it  is  provided 
ill  at  the  authority  shall  be  irrevocable." 

§  71.  Renunciation  by  agent.  Just  as  the  principal  has 
[tower  to  revoke  authority,  so  an  agent,  at  will,  may  termi- 
nate the  relation  by  renunciation ;  *^  subject,  as  in  the  case 
of  a  principal,  to  liability  for  damages  if  the  renunciation 
involves  breach  of  a  contract  of  employment.**  The  prin- 
cipal is  entitled  to  reasonable  notice  of  renunciation,  and 
may  recover  damages  for  any  loss  sustained  through  failure 

*i  Kindig  v.  March,  15  Ind.  248. 

42  American  Loan  &  Tisust  Co.  v.  Billings,  58  Minn.  187,  59  N. 
W.  998. 

43Blacl\stone  v.  Buttermore,  53  Pa.  St.  26G;  Frink  v.  Roe.  70 
€al.  296,  11  Pac.  820;  Ballard  v.  Insurance  Co.,  119  N.  C.  187,  25 
S.  E.  956;  McMahan  v.  Burns,  216  Pa.  448,  65  Atl.  806.  The  fat-t 
that  an  agent  was  entitled  to  commissions  on  rents  collected 
would  not  make  his  authority  irrevocable.  Farmers'  Loan  & 
Trust  Co.  V.  Wilson,  139  N.  Y.  284,  34  N.  E.  784. 

44  Walker  v.  Denison,  86  111.  142;  Flanagan  v.  Brown,  70  Cal. 
254,  11  Pac.  706;  Woods  v.  Hart,  50  Neb.  497,  70  N.  W.  53. 

4^  Barrows  v.  Cushway,  37  Mich.  481;  Security  Trust  &  Life 
Ins.  Co.  V.  Ellsworth,  129  Wis.  349,  109  N.  W.  125. 

4c  United  States  v.  Jarvis,  2  Ware.  278,  Fed.  Cas.  No.  15,468; 
Cannon  Coal  Co.  v.  Taggart,  1  Colo.  App.  60,  27  Pac.  238. 


102  THE   LAW   OF   AGENCY. 

to  give  such  notice.'*''  If  the  conduct  of  an  agent  is  such 
as  to  raise  an  implication  of  renunciation,  as  where  he  aban- 
dons performance  of  the  agency,  the  principal  may  act  upon 
the  inference  thus  raised  and  treat  the  agency  as  termi- 
nated.** 

§  72.  Termination  by  law.  Subject  to  certain  exceptions 
that  will  be  properly  noted,  an  agency  is  terminated  by 
operation  of  law  upon  the  death,  insanity  or  bankruptcy  of 
either  party ;  by  marriage  of  a  principal,  where  the  power 
is  one  to  sell  land;  and  by  the  outbreak  of  war  between 
countries  in  which  the  principal  and  agent  respectively  re- 
side. These  various  conditions  that  operate  to  terminate 
an  agency  will  be  separately  discussed  in  the  succeeding  sec- 
tions. 

§  73.  Death,  (a)  Of  principal.  Except  where  a  power 
is  coupled  with  an  interest,  an  exception  to  be  separately 
noted,*®  the  death  of  a  principal  instantly  revokes  all  au- 
thority vested  in  an  agent.^°  An  agent  is  but  the  repre- 
sentative of  another,  and  all  acts  done,  in  the  capacity  of 
agent,'  are  necessarily  done  in  the  name  and  bolialf  of  an- 
other.    Upon  the  death  of  that  other  the  agent  no  longer 

*T  The  agent  can  not  withdraw  himself  from  his  engagement 
wantonly  and  without  reasonable  notice,  without  responsibility  for 
consequences.     United  States  v.  Jarvis,  supra. 

■•a  Stoddard  v.  Key,  62  How.  Prac.  (N.  Y.)  137;  Case  v.  Jen- 
nings, 17  Tex.  6C1. 

"Post  §  73   (c). 

f-o  Harper  v.  Little,  2  Greenl.  (Me.)  14.  11  Am.  Dec.  25;  Dari'  v. 
Darr,  59  Iowa.  81,  12  N.  W.  7C5;  Mills  v.  Smith,  193  Mass.  11,  78 
N.  E.  7G5.  Authority  is  terminated  by  death  of  one  of  several 
joint  prin(ii)als,  or  by  doalh  of  one  partner  where  an  agent  rei)re- 
Konts  (he  firm.  Rowe  V.  Rand,  111  Ind.  206,  12  N.  E.  377;  Griggs 
V.  Swift,  82  Ca.  392,  9  S.  E.  1062. 


TERMINATION  OF  AGENCY.  103 

has  a  constituent,  and  acts  done  in  behalf  of  a  non-existent 
principal  are  mere  nullities.  It  makes  no  difference  that 
the  death  was  unknown  to  the  agent  and  third  parties  with 
whom  he  has  dealt ;  for  if  at  the  time  of  their  dealings  the 
principal  was  actually  dead,  their  lack  of  knowledge  of  the 
fact  can  not  give  validity  to  the  transaction.'^ 

Some  of  the  eases  do  not  follow  the  rule  in  its  strictest 
application.'^  Thus,  it  has  been  held  that  payment  of 
money  to  the  agent  of  a  dead  principal,  Avithout  knowledge 
of  his  death,  would  be  binding  on  his  estate ;  '^  and  Story 
has  support  of  judicial  authority  in  saying  that  the  rule 
does  not  apply  to  acts  which  need  not  be  done  in  the  name 
of  the  principal.'*  But  however  harsh  the  rule  in  strict 
application  may  be,  it  is  impossible  to  escape  the  logic  of  the 
proposition  that  one  man  can  not  act  in  behalf  of  another 
after  that  other  man  is  dead ;  and  that  to  involuntarily  sub- 
stitute as  principal  the  heirs  of  the  deceased  is  to  violate 
the  basic  principle  of  agency  that  one  man  can  not  repre- 
sent another  without  that  other's  assent.  The  rule,  there- 
fore, in  its  strictest  application,  would  seem  on  principle 
the  better  law." 

51  Long  V.  Thayer,  150  U.  S.  520;  Lewis  v.  Kerr,  17  Iowa,  73; 
Farmers'  Loan  &  Trust  Co.  v.  Wilson,  139  N.  Y.  284,  34  N.  E.  784. 

52  isti  V.  Crane,  8  Ohio  St.  520;  Meinhardt  v.  Newman,  71  Neb. 
532,  99  N.  W.  261. 

53  Dewesse  v.  Muff,  57  Neb.  17,  77  N.  W.  361;  Cassiday  v.  McKen- 
zie,  4  Watts  &  Serg.  (Pa.)  282. 

54  Story  on  Agency,  §  496;  Dick  Ex'r  v.  Page,  17  Mo.  234.  Some 
of  the  cases  seem  to  hold  that  acceptance  of  payment  is  not  an  act 
done  in  the  name  of  the  principal,  but  this  is  disregarding  the  le- 
gal significance  of  the  phrase  "in  the  name  of  "  The  doctrine  had 
better  be  based,  as  impliedly  is  done  in  one  case,  upon  broad 
grounds  of  public  policy  or  business  necessity.  See  Meinhardt  v. 
Newman.  71  Neb.  532,  99  N.  W.  261. 

55  Weber  v.  Bridgman,  113  N.  Y.  600.  21  N.  E.  985;   Fanners' 


104  THE   LAW   OF   AGENCY. 

(b)  Of  agent.  The  death  of  an  agent  terminates  the 
relation, ""^  and  the  powers  given  him  can  not  be  exercised 
by  his  heirs  or  administrator  unless  it  be  a  power  coupled 
with  an  interest.^' 

(c)  Power  coupled  with  an  interest.  We  saw  in  a  pre- 
ceding section  that  a  power  given  for  a  valuable  considera- 
tion can  not  be  revoked  by  the  donor.^^  Such  a  power, 
however,  can  not  survive  the  death  of  the  donor  unless  it 
be  accompanied  by  the  grant  of  such  an  interest  or  estate 
in  the  subject  matter  of  the  power  as  to  admit  of  its  exer- 
cise by  the  donee  in  his  own  name  and  behalf.  Clearly, 
where  a  donee  has  no  interest  in  the  subject  matter  of  a 
power,  but  merely  an  interest  in  its  execution,  he  necessarily 
would  have  to  exercise  it  in  the  name,  and  by  the  authority, 
of  the  donor.  But  this  would  be  legally  impossible  after 
the  donor's  deatli.^^     "Where,  however,  the  power  is  accom- 

Loan  &  Trust  Co.  v.  Wilson,  139  N.  Y.  287,  34  N.  E.  784;  Long  v. 
Thayer,  150  U.  S.  520.  "The  instant  the  constituent  dies  the  estate 
belongs  to  his  heirs,  or  devisees,  or  creditors;  and  their  rights  can 
not  be  divested  or  impaired  by  any  act  performed  by  the  attorney 
after  the  death  has  happened;  the  attorney  then  being  a  stranger 
to  them  and  having  no  control  over  their  property."  Harper. v. 
Little,  2  Greenl.  (Me.)  14,  11  Am.  Dec.  25.  Failure  to  promptly 
notify  an  agent  of  the  principal's  death  might,  of  course,  estop 
the  legal  representatives  to  set  up  the  revocation  of  authority. 

06  In  re  Merrick's  Estate,  8  Watts  &  Serg.  (Pa.)  402;  Adriancp 
V.  Rutherford,  57  Mich.  170,  23  N.  W.  718;  Ryder  v.  Johnston, 
15?,  Ala.  482,  45  South.  181.  So,  a  joint  agency  is  revoked  by 
death  of  one  of  the  agents.  Hartford  Ins.  Co.  v.  Wilcox,  57  111 
180;  Rowe  v.  Rand,  111  Ind.  206,  12  N.  E.  377;  Ante  §  27. 

67  Collins  V.  Hopkins,  7  Iowa,  463;  Merrwin  v.  Lewis,  90  111.  505 

88  Ante  §  70. 

no  "The  Intei-fst  or  titlo  in  Iho  11iing  hniiig  vested  In  the  person 
who  gives  the  power,  remains  in  him,  unless  it  be  conveyed  with 
the  power;  ami  can  pass  out  of  him  only  by  a  regular  act  in  his 
own  name.    The  act  of  the  substitute,  therefore,  which  in  such  a 


TERMINATION  OF  AGENCY.  105 

panied  by  an  interest  or  estate  of  such  a  character  as  to  en- 
able the  donee  to  exercise  it  in  his  own  name,  then  the  ne- 
cessity of  pronouncing  it  revoked  by  death  of  the  donor 
does  not  exist,  and  the  courts  protect  it  and  permit  its  ex- 
ercise after  as  well  as  before  his  death.^°  Thus,  where  a 
]nortgage  is  held  to  pass  legal  title,  a  power  of  sale  therein 
may  be  exercised  after  death  of  the  mortgagor ;  ®^  but  such 
power  usually  can  not  be  exercised  in  those  states  where 
a  mortgage  is  deemed  a  mere  security  passing  no  legal  title.®' 
So,  indorsement  and  delivery  of  a  note  for  collection  passes 
title  in  trust,  and  hence  the  agent  may  collect  the  same 
after  death  of  the  principal.''^  But  a  power  to  sell  prop- 
erty, though  given  to  secure  a  loan,  is  revoked  by  death 
of  the  donor  unless  accompanied  by  a  conveyance  or  as- 
signment of  title. "^ 

(d)  Hunt  V.  Eousmanier.  The  distinction  laid  dowTi 
in  the  foregoing  subdivision  between  powers  irrevocable 

case  is  the  act  of  the  principal,  to  be  legally  effectual,  must  be  in 
his  name,  and  must  be  such  an  act  as  the  principal  himself  would 
be  capable  of  performing.  Such  a  power  necessarily  ceases  with 
the  life  of  the  person  making  it."  Marshall,  C.  J.  in  Hunt  v.  Rous- 
manier. 

60  Hunt  V.  Rousmanier,  8  Wheat.  (U.  S.)  174;  Houghtaling  v. 
Marvin,  7  Barb.  (N.  Y.)  412;  State  v.  Walker,  125  U.  S.  339;  Frink 
V.  Roe,  70  Cal.  296,  11  Pac.  820. 

61  Varnum  v.  Meserve,  8  Allen  (Mass.),  158;  Berry  v.  Skinner, 
30  Md.  567;  Hudgins  v.  Morrow,  47  Ark.  515,  2  S.  W.  104;  Harvey 
V.  Smith,  179  Mass.  592,  61  N.  E.  217. 

62  Wilkins  v.  McGehee,  86  Ga.  764,  13  S.  E.  84;  Johnson  v.  John- 
son. 27  S.  C.  309,  3  S.  E.  606.  But  see  Reilly  v.  Phillips,  4  S.  D. 
604,  57  N.  W.  780. 

63  Moore  v.  Hall,  48  Mich.  143;  Boyd  v.  Corbitt,  37  Mich.  52. 

64  Hunt  V.  Rousmanier,  8  Wheat.  (U.  S.)  174;  Fisher  v.  South- 
ern Loan  &  Trust  Co.,  138  N.  C.  90,  50  S.  E.  592;  Prink  v.  Roe,  70 
Cal.  296,  11  Pac.  820;  Taylor  v.  Burns,  203  U.  S.  120.  Thus,  power, 
on  default  of  payment  of  a  loan,  to  sell  debtor's  slaves,  was  held 
revoked  by  death.    McGriff  v.  Portor.  5  Fla.  373. 


106  THE   LAW   OF   AGENCY. 

by  act  of  the  donor  and  powers  irrevocable  by  deatli,  was 
drawTi  by  Chief  Justice  ]\Iarshall  in  the  leading  case  of 
Hunt  V.  Eousmanier,  w^here  a  power  of  sale,  given  to  secure 
a  loan,  was  declared  to  be  irrevocable  by  act  of  the  donor, 
but  revoked  by  his  death,  where  unaccompanied  by  an  as- 
signment of  title,  and  hence  not  a  power  ''coupled  with  an 
interest. "  *®  "  "We  hold  it  clear, ' '  said  the  great  Chief  Jus- 
tice, "that  the  interest  which  can  protect  a  power  after  the 
death  of  a  person  who  creates  it  must  be  an  interest  in  the 
thing  itself.  In  other  words,  the  power  must  be  engrafted 
on  an  estate  in  the  thing.  *  *  *  A  power  coupled  with 
an  interest  is  a  power  w^hieh  accompanies,  or  is  connected 
with,  an  interest."  Hunt  v.  Rousmanier  is  still  the  leading 
authority  in  this  country  and  its  reasoning  has  been  gen- 

* 

erally  followed.  Some  confusion  has  arisen  from  the  fact 
that  here  and  there  authorities  apply  a  single  designation  to 
a  power  irrevocable  by  the  donor  and  to  a  power  irrevocable 
by  death,  calling  both  indiscriminately, — a  power  "coupled 
with  an  interest."  ®®  And,  so,  where  the  term  is  used  in  the 
restricted  sense  adopted  by  Chief  Justice  Marshall,  there  is 
some  conflict  as  to  what  constitutes  a  power  "coupled  with 
;in  interest,"  as  the  term  is  defined  in  Hunt  v.  Rousmanier. 
Thus,  in  a  leading  New  York  case  it  was  held  that  where  a 
power  of  sale  given  as  security  is  accompanied  by  deliver^' 
of  possession  of  the  property  to  be  sold,  it  may  be  deemed 
a  power  "coupled  with  an  interest"  as  the  term  is  defined 
by  Marshall.'^     So  it  has  been  held,  in  apparent  conflict 

85  Hunt  V.  Rousmanier.  8  Wheat.  (U.  S.)  174. 

•••oDiK  Four  WilrainKton  Coal  Co.  v.  Wren,  115  III.  App.  331; 
Shepard  v.  McNail,  122  Mo.  App.  418,  99  S.  W.  494.  See  Terwil- 
lip:er  V.  Railway  Co..  149  N.  Y.  86,  43  N.  E.  432. 

«T  "As  the  possession  of  the  property  was  delivered  in  connec- 
tion with  fills  power  to  dispose  of  it  for  security,  the  power  tO' 


TERMINATION  OF  AGENCY.  107 

with  Hunt  V.  liousmanicr,  that  power  to  sell  goods,  or  to 
collect  accounts,  and  apply  the  proceeds  in  payment  of  a 
debt,  is  a  power  "coupled  with  an  interest"  and  will  not  be 
revoked  by  death  of  the  donor.®^ 

In  concluding  the  subject,  it  may  be  said  that  unless  the 
pOAver  is  "coupled  with  an  interest,"  as  the  term  is  used 
in  Hunt  v.  Bousmanier,  it  could  not  be  exercised  in  accord- 
ance with  its  terms  after  death  of  the  donor,  for  the  reason 
that  its  exercise  would  have  to  be  in  the  name  of  the  donor. 
But,  nevertheless,  where  such  a  power  is  given  as  a  security, 
the  donee  acquires  a  right  analogous  to  an  equitable  lien 
which  undoubtedly  would  be  protected  by  the  courts,  and 
enforced  by  appropriate  remedy  against  the  estate  of  the 
donor." 

§  74.  InsBJiity.  (a)  Of  principal.  Insanity  of  a  prin- 
cipal, sufficient  to  incapacitate  him  from  performing  legal 
acts  in  his  own  behalf,  will,  of  course,  terminate  an  agency, 
since  a  person  can  do  through  agent  only  such  acts  as  he  is 
competent  personally  to  perform.""  It  is  the  rule,  hovr- 
ever,  that  the  contract  of  an  insane  person  will  be  valid 
where  made  with  a  person  who  dealt  in  good  faith  and 
without  knowledge  of  the  insanity,  provided  the  contract 
lias  been  executed,  and  the  parties  can  not  be  restored  to 
statu  quo?'^     This  rule  would  seem  applicable  to  a  contract 

sell  was  coupled  witli  an  interest  in  the  property  thus  pledged, 
and  survived."  Knapp  v.  Alvord,  10  Paige  (N.  Y.),  205,  40  Am. 
Dec.  241. 

68  Merry  v.  Lynch,  68  Me.  94;  Shepard  v.  McNail,  122  Mo.  App. 
418,  99  S.  W.  494;  Kelly  v.  Bowerman,  113  Mich.  446,  71  N.  W.  836. 

G9  Knapp  V.  Alvord,  10  Paige  (N.  Y.),  205,  40  Am.  Dec.  241;  Am- 
erican Loan  &  Trust  Co.  v.  Billings.  58  Minn.  187,  59  N.  W.  998. 

70  Davis  V.  Lane,  10  N.  H.  156;  Hill  v.  Day,  34  N.  J.  Law,  150; 
Matthiessen,  etc.,  Co.  v.  McMahon,  38  N.  J.  Law,  536. 

"  Ante  §  17. 


108  THE   LxUV   OP   AGENCY. 

made  by  agent  in  behalf  of  a  principal  who,  after  creation 
of  the  agency,  becomes  insane.'-  Where  a  power  is  coupled 
with  an  interest,  so  that  it  can  be  exercised  by  the  grantee 
in  his  o^vn  behalf,  insanity  of  the  grantor  will  not  revoke 
the  power/^ 

(b)  Of  agent.  Where  authority  vested  in  an  agent  is 
of  a  character  to  imply  exercise  of  sane  judgment  and  dis- 
cretion— and  this  practically  includes  all  authority — in- 
sanity of  an  agent  would  undoubtedly  terminate  an  agency^* 

§  75.  Bankruptcy,  (a)  Of  principal.  Bankruptcy  of 
a  principal  revokes  authority  which  relates  to  property  of 
which  the  principal  is  divested  by  the  bankruptcy.'^^  This 
would  not  include  authority  coupled  with  an  interest  nor  a 
naked  power  given  as  a  security.'^ 

(b)  Of  agent.  Since  solvency  of  an  agent  is  usually  a 
factor  taken  into  consideration  by  a  principal  in  making  the 
appointment,  bankruptcy  of  an  agent  terminates  his  author- 
ity in  all  financial  matter ;  '  ^  though  not  necessarily  as  to 
mere  formal  acts.'^ 

72  Drew  V.  Niinn,  4  Q.  B.  Div.  (Eng.)  661;  Matthiessen,  etc., 
Refining  Oo.  v.  McMahon,  38  N.  J.  Law,  536;  Davis  v.  Lane,  10 
N.  H.  156;  Ante  §  17. 

73  Hill's  Ex'r  V.  Day,  34  N.  J.  Eq.  150;  Davis  v.  Lane,  supra. 

74  "The  exercise  of  sound  judgment  and  discretion  would  seem 
to  be  required  in  all  cases  as  preliminaries  to  the  due  execution  of 
authority."     Story  on  Agency,  §  487. 

"  Wilson  V.  Harris,  21  Mont.  374,  54  Pac.  46. 

71  Hall  V.  miss,  118  Mass.  554,  19  Am.  Rep.  476.  Where  the 
owner  of  shares  of  stock  in  a  banlc  delivered  his  certificate,  to- 
gether with  a  power  of  attorney  to  transfer  the  same,  to  secure 
a  note,  the  powei-  was  not  revoked  by  bankruptcy.  Dickinson  T. 
Bank,  129  Mass.  279.  37  Am.  Rep.  351. 

'■  .\udenrled  v.  Retteley,  8  Alien  (Mass.),  302. 

7»  Story  on  Agency,  §  486. 


TERMINATION  OF  AGENCY.  109 

§  76.  Marriage.  At  common  law  a  married  woman 
could  not  appoint  an  agent,  and  hence  marriage  of  a  feme 
sole  revoked  authority  of  an  agent  previously  appointed  by 
her.''®  This  rule  would  not  apply  where  disabilities  of  mar- 
ried women  have  been  removed  by  statute.  Where,  how- 
ever, a  deed  of  conversance  by  a  married  woman  must  be 
joined  in  by  her  husband,  marriage  of  a  feme  sole  will,  of 
course,  revoke  a  power  of  attorney  to  sell  land.  By  mar- 
riage, both  husband  and  wife  acquire  an  interest  in  land  of 
the  other,  which  can  be  divested  only  by  voluntary  convey- 
ance. Hence  marriage  of  either  a  man  or  woman  revokes 
a  power  of  attorney  to  the  extent  of  this  interest;  ^^  if,  in- 
deed, it  does  not  amount  to  entire  revocation.^^ 

§  77.  War.  Outbreak  of  war  between  coimtries  in 
which  the  principal  and  agent  respectively  reside  usually 
terminates  an  agency.*-  An  exception  exists  in  the  case  of 
an  agency  to  collect  debts,  where  the  agent  and  debtor  are 
in  the  same  country,  and  the  parties  assent  to  the  contin- 
uance of  the  agency ;  ®^  and  it  has  been  held  by  the  Supreme 
Court  of  the  United  States  that  a  power  of  attorney  to  sell 

TsJudson  V.  Sierra,  22  Tex.  365;  Wamtole  v.  Foote,  2  Dak.  1, 
2  N.  W.  239. 

80  Joseph  V.  Fisher,  122  Ind.  399,  23  N  E.  856. 

81  Henderson  v.  Ford,  46  Tex.  627.  The  power  given  before  mar 
riage  is  to  convey  the  entire  estate  free  from  any  dower  right. 
Since,  by  marriage  the  principal  loses  this  power,  it  would  seem, 
on  principle,  that  the  authority  given  the  agent  would  thereby  be 
revoked  in  toto. 

S2  New  York  Life  Ins.  Co.  v.  Davis,  95  U.  S.  425;  Ward  v.  Smith. 
7  Wall.   (U.  S.)   447. 

83  Kershaw  v.  Kelsey,  100  Mass.  561;  Montgomery  v.  United 
States,  15  Wall.  (U.  S.)  395.  But  the  money  must  not  be  paid 
with  a  view  to  its  transmission  to  the  principal  during  contin 
uance  of  hostilities.    Kershaw  v.  Kelsey.  supra. 


]  10  THE  LAW  OF  AGENCIES. 

land  was  not  revoked  by  war,  since  it  was  not  an  agency  of 
a  character  to  involve  active  or  continuous  business  rela- 
tions between  the  parties  residing  in  the  belligerent  coun- 
tries. "The  mere  fact  of  the  breaking  out  of  war,"  said 
the  court,  "does  not  necessarily  and  as  a  matter  of  law  re- 
voke every  agency;  whether  it  is  revoked  or  not  depends 
upon  the  circumstances  surrounding  the  case  and  the  nature 
and  character  of  the  agency. ' '  ** 

»*  Williams  v.  Paine,  169  U,  S.  55. 


PART  II. 

EXISTEI^OE   Al^D  EXTENT  OF 
AUTHORITY. 


CHAPTER  VII. 
ESTABLISHMENT  OF  AUTHORITY. 

S  78.  In  general. 

79.  Establishment  of  authority. 

(a)  Agent's  declarations. 

(b)  Communications  between  principal  and  agent. 

(c)  Oral  or  implied  authority. 

(d)  Ratification  and  estoppel. 

(e)  Province  of  court  and  jury. 

80.  Written  authority. 

81.  Ambiguous  authority. 

82.  For  principal's  benefit. 

83.  Slight  deviation. 

84.  Severable  transaction. 

85.  Public  officers. 

§  78.  In  general.  As  we  have  already  seen,  it  is  a  fun- 
damental principle  of  the  law  of  agency  that  one  man  can- 
not bind  another  by  act  or  contract  without  that  other's 
assent.  Hence,  in  order  to  establish  the  fact  of  the  exist- 
ence of  an  agency,  or  of  authority  in  an  agent  to  bind  his 
principal  by  a  particular  act  or  contract,  it  is  necessary  to 
prove  that  what  the  agent  did  was  done  with  the  principal's 
n.ssent,  either  precedently  or  subsequently  given,  expressly 


112  THE  LAW  OF  AGENCY. 

or  impliedly;  or  that  the  principal's  conduct  has  been  such 
as  to  estop  him  to  deny  the  agent's  authority.  The  law  in- 
dulges no  presumptions  as  to  the  existence  in  one  man  of 
authority  to  bind  another,  except  such  as  reasonably  arise 
from  such  other's  acts  or  conduct.  In  short,  where  one 
person  seeks  to  hold  another  by  virtue  of  dealings  with  the 
latter 's  agent,  the  burden  is  upon  him  to  establish  existence 
of  the  agent's  authority.^ 

§  79.  Establishment  of  authority,  (a)  Agent's  declara- 
tions. Existence  of  authority  in  an  agent  can  be  estab- 
lished only  by  proof  of  express  or  implied  assent  to  its  exer 
eise  by  the  principal.^  An  agent,  naturally,  cannot  confer 
authorit}^  upon  himself.  Hence  declarations  of  an  agent, 
ordinarily,  are  not  admissible  to  prove  existence  of  his  au- 
thority.^ Nor  can  his  authority  be  established  by  proof  that 
he  acted  as  agent  and  claimed,  or  was  reputed,  to  have 
the  power  which  he  assumed  to  exercise.*  In  practice,  it 
would  seem,  such  evidence  of  necessity  must  fi-equently  be 

iBeal  V.  Merriam,  11  Mete.  (Mass.)  470;  Clark  v.  Dillman.  108 
Mich.  625,  66  N.  W.  570;  Schmidt  v.  Shaver,  196  111.  108,  63  N.  E. 
655.  The  burden  of  showing  the  existence  of  an  agency  Is  upon 
the  party  who  alleges  it.     Jahn  v.  Kelly,  58  111.  App.  570. 

2  Graves  v.  Horton,  38  Minn.  C6.  35  N.  W.  568;  Green  v.  Hinck- 
ley, 52  Iowa,  633,  3  N.  W.  G88;  Wheeler  v.  McGuire,  86  Ala.  398, 
5  South.  190. 

3MfC>ine  V.  Badger,  126  Wis.  186,  105  N.  W.  667;  Peck  v.  Rit- 
chey,  66  Mo.  114;  Grant  v.  Humerick,  123  Iowa,  571.  94  N.  W.  510; 
Snook  V.  Lord,  56  N.  Y.  605;  Malla,nphy  Bank  v.  Schoot,  135  111. 
655,  26  N.  E.  640.  So,  one  assuming  to  act  as  subagent  can  not 
establish  his  right  to  lepresent  the  principal  by  his  own  testi- 
mony.    Lucas  v.  Rader,  29  Ind.  App.  287,  64  N.  E.  488. 

4  Trowbridge  v.  Wheeler,  1  Allen  (Mass),  162;  Perkins  v  Steb- 
bins.  29  Barb.  (X.  Y.)  523;  North  v.  Metz.  57  Mich.  612,  24  N.  W. 
759:  Edwards  v.  Dooley,  120  N.  Y.  540.  24  N.  E.  827;  Eaton  v. 
Granite  Statf^  .Ass'n,  89  Me.  58,  35  Atl.  1015. 


ESTABLISHMENT  OF   AUTHORITY.  113 

relied  upon  to  establish  the  existence  of  an  agency,  and  un- 
der certain  circumstances  it  is  competent  for  that  purpose. 
Thus,  declarations  of  an  agent  might  be  admissible  ^vhen 
taken  in  connection  with  ratification  of  his  acts  by  the  prin- 
cipal; ^  and  where  an  agency  has  otherwise  been  prima  facie 
established,  declarations  of  an  agent  would  be  admissible 
as  corroborative  evidence.^  So,  where  the  agent's  acts  or 
declarations  have  been  so  long  continued,  or  so  open  and  no- 
torious, that  they  must  have  come  to  the  notice  of  the  prin- 
cipal, the  latter 's  failure  to  repudiate  them  gives  rise  to  an 
inference  of  assent  to  the  agent's  assumption  of  authority; 
and  as  evidence  from  which  the  jury  might  infer  such  as- 
sent, the  acts  or  declarations  of  the  agent,  taken  in  connec- 
tion with  the  principal's  apparent  acquiescence,  would  be 
admissible  in  evidence.'^ 

The  agent,  of  course,  may  always  be  called  as  a  witness 
to  testif}'-  to  the  fact  of  his  agency,  and  where  the  power 
was  not  delegated  in  writing,  may  testify  as  to  its  nature 
and  extent.*  ''It  is  competent,"  said  the  court  in  a  Kansas 
case,  "to  prove  a  parol  agency  and  its  nature  and  scope  by 
the  testimony  of  the  person  who  claims  to  be  the  agent. 

s  Robert  Buist  Co.  v.  Lancaster  Mercantile  Co.,  73  S.  C.  48,  52 
S.  E.  789. 

c  Singer,  etc.,  Stone  Co.  v.  Hutchinson,  184  111.  169,  56  N.  E.  353; 
Foste  V.  Standard  Ins.  Co.,  34  Ore.  125,  54  Pac.  811;  Eagle  Iron  Co. 
V.  Baugh,  147  Ala.  613,  41  South.  663. 

7  Bragg  V.  Boston,  etc.,  Ry.  Corp.,  9  Allen  (Mass.),  54;  Best  v. 
Krey,  83  Minn.  32,  85  N.  W.  822;  Daggett  v.  Champlain  Mfg.  Co., 
71  Vt.  370,  .45  Atl.  755;  Black  Lick  Lumber  Co.  v.  Camp  Const. 
Co.,  63  W.  Va.  477,  60  S.  E.  409. 

8  Van  Sickle  v.  Keith,  88  Iowa,  9,  55  N.  W.  42;  Gould  v.  Nor- 
folk Lead  Co.,  9  Cush.  (Mass.)  338,  57  Am.  Dec.  50:  State  v.  Hen- 
derson, 86  Mo.  App.  482;  Lawall  v.  Groman.  180  Pa.  St.  532,  37 
Atl.  98;  Liddell  v.  Sahline,  55  Ark.  627,  17  S.  W.  705;  Reeves  v. 
Bruening,  13  N.  D.  157,  100  N.  W.  241. 


114  THE  LAW  OF  AGENCY. 

But  it  is  not  competent  to  prove  the  supposed  authority  of 
an.  agent,  for  the  purpose  of  binding  his  principal,  by  prov- 
ing what  the  supposed  agent  has  said  at  some  previous 
time."* 

(b)  Commimications  between  principal  and  agent. 
Following  the  same  doctrine,  it  is  clear  that  communications 
between  principal  and  agent  in  which  the  latter 's  authority 
is  expressly  or  impliedly  admitted  by  the  principal,  would 
be  competent  evidence  of  the  existence  of  such  authority/'' 
Thus  a  letter  from  principal  to  agent,  or  conversations  had 
between  them,  bearing  upon  the  fact  or  scope  of  the  agency. 
would  be  admissible  in  evidence.'^^ 

(c)  Oral  and  implied  authority.  Except  in  special 
cases,^^  the  existence  of  an  agency  may  be  proved  by  parol.^^ 
Where  authority  was  orally  given,  the  fact  of  its  existence 
may  be  established  by  any  one  who  heard  the  words  of  the 
principal."  If  these  are  disputed,  or  their  meaning  am- 
biguous, the  fact  and  effect  of  their  utterance  would  be  a 
question  for  the  jury  in  solution  of  the  ultimate  problem 
as  to  what  was  the  intention  of  the  principal.^"     The  agent, 

9  Howe  Maxih.  Co.  v.  Clark,  15  Kan.  492. 

10  Arthur  v.  Card,  3  Colo.  App.  133,  32  Pac.  343. 

11  Rowlands  v.  Huggins,  28  Conn.  122.  Slonecker  v.  Garrett. 
48  Pa.  St.  415;  Bergtholdt  v.  Porter  Bros.  Co.,  114  Cal.  681,  46  Pac. 
738;  Schilling  v.  Rosenheim,  30  111.  App.  81. 

12  Post  §  80. 

If  Lyon  V.  Thompson,  16  Iowa,  62;  Bryer  v.  Watson,  16  Me.  2G1; 
Ilamm  v.  Drew,  83  Tex.  77,  18  S.  W.  434. 

i^Rcam  V.  McEhone,  50  Kan.  409.  31  Par.  1075;  Moffet  v.  Mof 
fet,  90  Iowa,  442.  57  N.  W.  954;  Bartlett  v.  Spaikman,  95  Mo.  136, 
8  S.  W.  406;  Campbell  v.  Hough  (N.  J.  Eq.),  68  Atl.  759.  If  ex- 
press oral  authority  is  not  satisfactorily  shown,  authoiity  may  be 
Implied  from  facts  and  circumstances.  Anglo-California  Bank  v. 
Cerf,  149  Cal.  393,  81  Pac.  1081. 

1"  Dickinson   County  v.   Mississippi   Valley   Ins.   Co.,   41    Iowa. 


ESTABLISHMENT  OP  AUTHORITY.  115 

as  we  have  seen,  may  testify  as  to  the  fact  of  the  agency ;  *• 
and,  so,  declarations  or  admissions  of  the  principal,  to 
whomsoever  made,  which  tend  to  establish  the  fact  of  the 
agency  may  be  introduced  in  evidence  for  that  purpose.^^ 
Where  authority'  is  sought  to  be  established  by  implica- 
tion, primary  proof  must  be  made  of  acts,  conduct  or  cir- 
cumstances sufficient  to  give  rise  to  an  inference  of  its  dele- 
gation.^* Though  wide  latitude  is  allowed  in  the  introduc- 
tion of  any  evidence  that  tends  to  prove  an  agency,  yet  it 
must  be  remembered  that  in  the  end,  authority  will  be 
deemed  established  only  where  the  fact  of  its  existence  is 
a  legitimate  conclusion  from  the  evidence  presented.^'' 
Proof  of  facts  that  might  raise  an  inference  of  authority 
to  sell  a  hors3  would  not  necessarily  be  sufficient  evidence 
of  authority  to  sell  a  house.     Thus,  evidence  that  one  acted 

286:  Hyman  v.  Waas,  79  Conn.  251,  64  Atl.  354;  Luckie  v.  John- 
ston, 89  Ga.  321,  15  S.  E.  459;  Hawks  v.  Davis,  185  Mass.  119,  69 
N.  E.  1072. 

iG  Armour  v.  Ross.  110  Ga.  403,  35  S.  E.  787;  O'Leary  v.  German 
American  Ins.  Co.,  100  Iowa,  390,  69  N.  W.  686. 

IT  Horner  v.  Beasley,  105  Md.  193,  65  Atl.  820;  Haughton  v. 
Maurer,  55  Mich.  323,  21  N.  W.  426;  Morse  v.  Diebold,  2  Mo.  App. 
163;  Grain  v.  Jacksonville  National  Bank,  114  111.  516.  2  N.  E.  48i".. 

IS  Indiana,  etc.,  Ry.  Co.  v.  Adamson,  114  Ind.  282,  15  N.  E.  5; 
Stewart  v,  Cowles,  67  Minn.  184,  69  N.  W.  694;  Plumb  v.  Curtis. 
66  Conn.  154,  33  Atl.  998;  Sheanon  v.  Pacific  Mut.  Life  Ins.  Co.. 
83  Wis.  507,  53  N.  W.  878. 

isMcNamara  v.  McNamara.  62  Ga.  200;  Bickford  v.  Menier, 
107  N.  Y.  409;  Washington  Bank  v.  Lewis.  22  Pick.  (Mass.)  24; 
Stratton  v.  Todd,  82  Me.  149,  19  Atl.  111.  The  evidence  necessary 
to  prove  an  implied  agency  is  very  different  from  that  required 
to  prove  an  express  agency.  In  the  former  case  greater  latitude 
must  necessarily  be  allowed  in  the  admission  of  testimony  tend- 
ing to  prove  facts  and  circumstances  from  which  the  existence 
of  an  agency  may  be  legitimately  inferred.  Patterson  v.  Van 
Loon,  186  Pa.  St.  367,  40  Atl.  495. 


116  THE  LAW  OF  AGENCY. 

as  agent  for  another  in  a  single  transaction  would  not  sup- 
port a  finding  that  he  had  authority  to  bind  the  principal 
in  other  transactions ;  -°  unless  the  prior  authority  of  the 
agent  was  of  such  comprehensive  and  continuous  charac- 
ter as  to  place  his  power  to  do  similar  acts  beyond  ques- 
tion.-^ So,  as  we  have  seen,^^  mere  possession  of  an  account 
is  not,  in  itself,  proof  of  authority  to  collect  the  same ;  ^* 
nor  can  authority  be  established  by  proof  of  prior  exercise 
of  like  powers,  where  it  does  not  appear  that  the  principal 
had  knowledge  of  the  same,  though  he  may  have  accepted 
its  benefits.-*  And,  so,  while  relationship  of  the  partis? 
is  a  circumstance  that  may  go  to  the  jur}^  yet  the  ex- 
istence of  relationship  between  them  does  not  of  itself 
prove  authority  in  one  to  represent  the  other.^®  But  on 
the  other  hand  proof  that  one  for  a  long  time  openly  acted 
as  agent  for  another,  with  the  latter 's  apparent  consent, 
would  be  strong  evidence  in  favor  of  his  authority.^®     So, 

20  Green  v.  Hinkley,  52  Iowa,  633,  3  N.  W.  688;  Collins  &  Toole 
V.  Crews,  3  Ga.  App.  238,  59  S.  E.  727;  Hackett  v.  Van  Frank,  105 
Mo.  App.  384,  79  S.  W.  1013.  Evidence  of  an  isolated  transaction 
occurring  a  year  subsequent  to  the  one  in  controversy,  unaccom- 
panied by  evidence  of  similar  acts  in  the  meantime,  is  too  remote 
and  should  be  excluded.  Bartley  v.  Rhodes  (Tex.  Civ.  App.),  33 
S.  W.  604. 

21  Graves  v.  Horton,  38  Minn.  66,  35  N.  W.  568.  Where  the  au- 
thority of  an  agent  is  in  question,  proof  of  the  exercise  by  him, 
with  knowledge  of  the  principal,  of  similar  authority  in  like 
transactions  may  be  material.  Wilber  First  National  Bank  v. 
Ridpath,  47  Neb.  96,  66  N.  W.  37. 

22  Ante  §  50  (c). 

23  Butcher  v.  Beckwith,  45  111.  460,  92  Am.  Dec.  232;  Antram  v. 
Thorndell,  74  Pa.  St.  442. 

2*  Cobb  v.  Hall,  49  Iowa,  366. 

28  Price  V.  Seydel,  46  Iowa,  696;  Crawford  v.  Redus,  54  Miss. 
700;   Broadstreet  v.  MfKamey,  41  Ind.  App.  472,  83  N.  E.  773. 

28Kerslake  v.  Schoonmaker,  1  Hun  (N.  Y.),  436;  Walsh  v. 
Pierce,  12  Vt.  130;  Hoge  v.  Turner,  96  Va.  624.  32  S.  E.  291;  Wil- 


ESTABLISIIMENT  OF  AUTHORITY.  117 

it  would  be  competent  to  show  that  the  principal  had  au- 
thorized the  alleged  agent  to  perform  similar  acts,  or  enter 
into  like  transactions,  with  other  parties ;  -^  or  that  the 
agent  was  habitually  in  charge  of  the  principal's  property 
and  dealt  therewith  to  the  latter 's  knowledge.'^  And  so, 
generally,  evidence  of  a  previous  course  of  dealing  between 
principal  and  agent,  that  tends  to  establish  the  latter 's  au- 
thority, may  properly  go  to  the  jury.-^ 

(d)  Ratification  and  estoppel.  AVhat  has  beeu  said  in 
the  preceding  subdivision  as  to  proof  of  precedent  author- 
ity, will  apply  to  the  establishment  of  a  ratification.^"  In 
order  to  establish  ratification  of  an  unauthorized  act  or 
contract,  proof  nuist  be  luade  of  written  or  spoken  words 
which  reasonably  express  an  intention  to  adopt  the  same ;  ^^ 
or  facts  must  be  shown  from  which  an  inference  of  such  in- 
tention necessarily  arises.^-     Thus,  as  we  have  seen,?^  proof 

liams  V.  Mitchell,  17  Mass.  98.  Where  an  agency  has  been  estab- 
lished, it  will  be  presumed  to  have  continued  for  a  reasonable 
time.  Hensel  v.  Maas,  94  Mich.  563,  54  N.  W.  381;  Bergner  v. 
Bergner,  219  Pa.  St.  113,  67  Atl.  999. 

27Barnett  v.  Gluting,  3  Ind.  App.  415,  29  N.  E.  927;  Fishbaugh 
V.  Spunaugle,  118  Iowa,  337,  92  N.  W.  58;  Lough  v.  Davis,  35 
Wash.  449,  77  Pac.  732. 

28  Kent  V.  Tyson,  20  N.  H.  121;  White  v.  Leighton.  15  Neb.  424. 
19  N.  W.  478. 

29  Doan  V.  Duncan,  17  111.  272;  Continental  Tobacco  Co.  v.  Camp- 
bell, 25  Ky.  Law  Rep.  569,  76  S.  W.  125;  Dexter  v.  Berge,  76  Minn. 
216,  78  N.  W.  1111. 

30  Burr  v.  Howard,  58  Ga.  564.  The  question  of  what  is  a  rea- 
sonable time  in  which  a  principal  must  object  to  acts  of  his  agent, 
or  be  bound  thereby,  is  one  of  fact  for  the  jury.  Minnesota  Lin- 
seed Oil  Co.  v.  Montague,  59  Iowa,  448,  13  N.  W.  438. 

31  Stokes  V.  Mackay,  140  N.  Y.  640,  35  N.  E.  786;  Fisher  v. 
Stevens,  16  111.  397. 

32  Lawrence  v.  Lewis,  133  Mass.  561;  HeCfron  v.  Armsby,  61 
Mich.  505.  28  N.  W.  672. 

38  Ante  §  58. 


118  THE  LAW  OF  .\G'5NCY. 

of  acceptance  of  the  benefits  of  an  unauthorized  transac- 
tion raises  an  inference  of  intention  to  ratify,^*  provided 
such  acceptance  was  with  knowledge  of  material  facts,  and 
lience  inconsistent  with  an  intention  not  to  ratify. ^°  Thus, 
proof  that  a  principal  recognized  and  acted  upon  an  un- 
authorized transaction  of  his  agent  would  constitute  evi- 
dence of  a  ratification.^^  So,  in  establishing  ratification  of 
the  imauthorized  compromise  of  a  law  suit,  it  would  be  com- 
petent to  show  that  shortly  thereafter  the  principal  had 
abandoned  the  suit;^^  and  ratification  of  an  unauthorized 
purchase  of  property  may  be  inferred  from  the  fact  that 
the  principal  retained  the  property  and  used  it  for  some 
time.^' 

So,  of  course,  where  an  estoppel  is  relied  upon,  proof 
must  be  made  of  acts  or  conduct  which  were  suiificient  to 
justify  a  belief  that  an  agent  possessed  the  authority  which 
he  claimed  to  exercise.^®  Thus,  it  may  be  shown  that  a  per- 
son placed  another  in  charge  of  this  property  with  all  ap- 
pearances of  having  authority'  to  deal  therewith ;  *'''  <  v  that 


34Rei(i  V.  Hibbard.  6  Wis.  175;  Smith  v.  Barnard,  148  N.  Y. 
420,  42  N.  E.  1054;  Dunn  v.  Ry.,  43  Conn.  434. 

35  Owings  V.  Hull,  9  Pet.  (U.  S.)  COT;  Benecke  v.  Insurance  Co.. 
105  U.  S.  355;  Coombs  v.  Scott,  12  Allen  (Mass.),  493;  Hunt  v. 
Agricultural  Works,  69  Minn.  539,  72  N.  W.  813. 

30  Cooper  v.  Schwartz,  40  Wis.  54;  Searing  v.  Butler,  69  111. 
575;   Barnes  v.  Boardman,  149  Mass.  106,  21  N.  E.  308. 

3T  Hoit  V.  Cooper,  41  N.  H.  111. 

38  Blood  V.  La  Serena  Land  Co.,  113  Cal.  221,  41  Pac.  1017;  Du- 
zan  V.  Meserve,  24  Ore.  523,  34  Pac.  548;  Fintel  v.  Cook,  88  Wis. 
485,  60  N.  W.  788. 

30  Walker  v.  Hannibal,  etc.,  Ry.,  121  Mo.  575,  26  S.  W.  3G0; 
Northwest  Thresher  Co.  v.  Eddyville,  80  Neb.  377,  114  N.  W.  291; 
Gibson  V.  Snow  Hardware  Co.,  94  Ala.  346.  10  South.  304. 

<oBarnett  v.  Oluting,  3  Ind.  App.  415,  29  N.  E.  927;  Florida,, 
etc.,  Ry.  V.  Barnedoe,  81   Ca.  175,  7  S.  E.  129. 


ESTABLISHMENT  OF  AUTHORITY.  119 

1he  owner  of  a  note  allowed  another  to  keep  possession  of  it 
;ind  to  hold  himself  out  as  the  owner  thereof;  *^  or  any  evi- 
dence of  conduct  that  justified  the  belief  in  a  third  party 
that  one  assuming  to  act  as  agent,  in  fact  had  authority, 
would  be  competent  to  establish  an  estoppel ;  *^  provided, 
of  course,  such  third  person  relied  in  good  faith  upon  the 
conduct.*^ 

(e)  Province  of  court  and  jury.  Where  evidence  has 
been  produced  which  tends  to  establish  a  disputed  agency, 
the  question  of  its  existence  or  non-existence  is  usually  one 
of  fact  that  should  be  left  to  the  determination  of  the  jury 
under  proper  instructions  from  the  court ;  **  and  this  is 
true  even  though  the  evidence  is  not  full  or  satisfactory.*^ 
As  in  other  cases,  it  is  within  the  province  of  the  court  to 
determine  whether  sufficient  evidence  has  been  adduced  to 
warrant  submission  of  the  issue  to  the  jury ;  *®  and,  so, 
where  the  facts  are  undisputed,  and  are  of  such  a  nature 
that  only  one  reasonable  conclusion  can  be  drawn   from 

41  Reed  v.  Vancleve,  27  N.  J.  Law,  352,  72  Am.  Dec.  369. 

42  Fitzgerald  Cotton  Oil  Co.  v.  Farmers'  Supply  Co.,  3  Ga.  App. 
212,  59  S.  E.  713;  Jordan  v.  Greig,  33  Colo.  360,  80  Pac.  1045. 

43  Summerville  v.  Hannibal,  etc.,  Ry.  Co.,  62  Mo.  391;  Karns  v. 
Olney,  80  Cal.  90,  22  Pac.  57.  Estoppel  does  not  arise  unless  the 
representations  were  made  under  such  circumstances  that  the 
principal  should  have  expected  that  they  would  have  been  relied 
on,  and  unless  they  were  actually  relied  on  in  good  faith  to  the 
injury  of  an  innocent  party.  Clark  v.  Dillman,  108  Mich.  625, 
66  N.  W.  570. 

**Fountaine  Crossing,  etc.,  Co.  v.  Rauch,  117  Mich.  401,  75  N.  W 
1063;  Hankinson  v.  Lombard,  25  111.  468,  79  Am.  Dec.  348;  Whit- 
tier  V.  Child,  174  Mass.  36,  54  N.  E.  344;  Berkson  v.  Kansas  City 
Ry.  Co.,  144  Mo.  211.  45  S.  W.  1119. 

«  Martin  v.  Brown,  75  Ala.  442;  Trundy  v.  Farrar,  32  Me.  225; 
Glenn  v.  Savage,  14  Ore.  567.  13  Pac.  442. 

4«  Trimble  v.  Keer  Mercantile  Co.,  56  Mo.  App.  683;  Lester  v. 
Snyder,  12  Colo.  App.  351,  55  Pac.  613. 


120  THE  LAW  OF  xVGENCY. 

them,  the  question  involved  becomes  one  of  law  and  may 
properly  be  decided  b}'  the  court.*^  But  even  where  the 
facts  are  undisputed,  the  case  should  go  to  the  jury  where 
they  are  of  such  a  nature  that  reasonable  minds  could  draw 
different  conclusions  from  them.*^ 

§  80.  Written  authority.  Where  authority  of  an 
agent  is  required  by  law  to  b.^  in  writing,***  proof  of  its 
existence  can  be  made  only  by  production  of  the  written 
power.^°  So,  where  a  third  person  deals  with  an  agent. 
Ivnowing  that  the  latter  acts  under  formal  written  instruc- 
tions, he  is  bound  thereby  and  is  limited  in  the  establish- 
ment of  the  agent 's  authority  to  proof  of  the  existence  and 
extent  of  such  written  authorization.^^  In  either  event, 
the  written  authority  can  not  be  contradicted  by  parol 
evidence.^^  This  rule,  however,  does  not  exclude  parol 
evidence  of  a  subsequent  and  distinct  grant  of  power,  en- 
larging or  varying  that  previously  given,  provided  the 
authority  thus  enlarged  or  varied  is  not  of  a  kind  that 
must  be  conferred  in  writing.^^ 

4"  McClung  V.  Spotswood,  19  Ala.  165;  Wilcox  v.  Hines,  100  Tenn. 
524,  45  S.  W.  781. 

*«  South  Bend  Toy  Co.  v.  Dakota,  etc.,  Ins.  Co.,  3  S.  D.  205,  52 
N.  W.  8G6. 

"  Ante  §  46. 

iioWaggener  v.  Waggener,  19  Ky.  542;  Neal  v.  Patten,  40  Ga. 
363;  Spofford  v.  Hobbs,  29  Me.  148,  48  Am.  Dec.  521;  Minnesota 
Stoneware  Co.  v.  McCrossen,  110  Wis.  316,  85  N.  W.  1019. 

^1  Stainback  v.  Read,  11  Grat.  (Va.)  281,  62  Am.  Dec.  648; 
Henry  v.  Lane,  62  C.  C.  A.  625,  128  Fed.  243;  Claflin  v.  Continen- 
tal Jersey  Works,  85  Ga.  27,  11  S.  E.  721 

62  Pollock  V.  Cohen,  32  Ohio  St.  514;  Ashley  v.  Bird,  1  Mo.  640. 
Allis  V.  Goldsmith,  22  Minn.  123;  Minnesota  Stone  Ware  Co.  v. 
McCrossen,  110  Wis.  316,  85  N.  W.  1019. 

oa  Hartford  Fire  Insurance  Co.  v.  Wilcox,  57  111.  180;  Maglll  v 
Stoddard,  70  Wis.  75,  35  N.  W.  346.     Where  an  agent's  authority 


ESTABLISHMENT   OP  AUTHORITY^  121 

The  written  power  having  been  produced,  or  its  contents 
shown,  the  authority  of  the  agent  to  do  the  act  for  which 
the  principal  is  sought  to  be  charged  is  to  be  determined 
by  the  court  from  a  construction  of  the  instrument.^*  For- 
mal powers  of  attorney  are  strictly  construed,  and,  where 
their  terms  are  clear,  will  not  be  extended  by  implication.^^ 
Thus,  power  to  confess  judgment  at  a  specified  term  of 
court  does  not  import  authority  to  confess  judgment  at  a 
different  term  of  court ;°®  a  power  to  sell  real  estate  does 
not  include  power  to  mortgage,^^  nor  to  sell  laud  subse- 
quently acquired  by  the  principal.^^  And  a  general  power 
to  represent  the  principal  in  all  his  interests  in  a  given  lo- 
cality does  not  include  authority  to  embark  the  principal 
in  a  new  and  different  business. ^^  So,  where  power  to  do 
particular  acts  is  followed  by  general  terms  of  authority, 
such  general  terms  are  restricted  to  what  is  necessary  to 

rests  partly  in  parol  and  partly  in  writing,  if  the  parol  evidence 
is  conflicting,  or  the  written  instructions  ambiguous,  the  scope 
and  extent  of  the  authority  may  be  left  to  the  jury.  McLaughlin 
T.  Wheeler,  1  S.  D.  497,  47  N.  W.  816. 

5*  Where  the  authority  has  been  conferred  in  writing,  its  nature 
and  extent  are  questions  of  law  for  the  court.  Claflin  v.  Con- 
tinental Jersey  Works,  85  Ga.  27,  11  S.  E.  721;  Groscup  v.  Dow- 
ney, 105  Md.  273,  65  Atl.  930;    Pollock  v.  Cohen.  32  Ohio  St.  514. 

55  Wood  V.  Goodridge,  6  Cash.  (Mass.)  117,  52  Am.  Dec.  771; 
Brantley  v.  Insurance  Co..  53  Ala.  554;  Golinski  v.  Allison,  114 
Cal.  458,  46  Pac.  295.  If  the  language  used  in  a  power  of  attorney 
is  so  vague  and  general  that  the  court  can  not  determine  the  au- 
thority conferred,  the  power  is  void  for  uncertainty.  Stafford  v. 
Lick,  13  Cal.  240. 

5G  Rankin  v.  Eakin,  3  Head   (Tenn.),  229. 

BTWood  V.  Goodridge,  6  Cush.  (Mass.)  117,  52  Am.  Dec.  771; 
Jeffrey  v.  Hursh,  49  Mich.  31,  12  N.  W  898. 

58  Penfold  V.  Warner,  96  Mich.  179,  55  N.  W.  680. 

59  Campbell  v.  Hastings,  29  Ark.  512;  Home  v.  Ingraham.  125 
111.  198,  16  N.  E.  868. 


322  THE  LA^^  of  aglnjy. 

performance  of  the  particular  acts.^**  Thus  under  a  power 
to  demand  and  receive  all  money  due,  and  to  transact  all 
biTsiness,  the  phrase,  "transact  all  business,"  would  be  con- 
strued to  mean  such  business  as  was  necessary  to  collection 
of  the  money."^  Where  written  authority  is  of  informal 
character,  such  as  letters,  memoranda,  or  telegrams,  liberal 
rules  of  construction  prevail/^  In  any  case,  "the  object  of 
the  parties  is  to  be  kept  in  view,  and  when  the  language 
used  will  permit,  that  construction  should  be  adopted  which 
will  carry  out  instead  of  defeating  the  purpose  of  the  ap- 
pointment. ' '  ®^  Thus  even  in  formal  powers,  the  grant  of 
authority  will,  if  possible,  be  construed  to  include  such  in- 
cidental powers  as  are  necessary  to  the  proper  execution 
of  the  agency ;  ®*  and  evidence  of  all  the  surrounding  cir- 
cumstances may  be  considered  to  aid  the  court  in  the 
proper  interpretation  of  the  instrument.*'^ 

60  White  V.  Young,  122  Ga.  830,  51  S.  E.  28;  Quay  v.  Preside,  etc., 
Hy.  Co.,  82  Cal.  1,  22  Pac.  925. 

«i  Hogg  V.  Snaith,  1  Taunt.  (Eng.)  347;  See,  also,  Rountree  V- 
Davidson,  59  Wis.  522,  18  N.  W.  518. 

<:-•  Merrinian  v.  Fulton,  29  Tex.  97;  Craighead  v.  Peterson,  72  N.. 
Y.  279;  American  Bonding  Co.  v.  Ensey,  105  Md.  211,  65  Atl.  921. 

63Holladay  v.  Daily,  19  Wall.  (U.  S.)  606;  Long  v.  Jennings, 
137  Ala.  190,  33  South.  857.  If  two  constructions  seem  reasonable, 
one  of  which  would  uphold,  the  other  invalidate,  the  agent's  acts, 
the  former  construction  is,  if  possible,  to  be  preferred.  Muth  v. 
Goddard,  28  Mont.  237,  72  Pac.  621. 

«■»  Hartford  Ins.  Co.  v.  Wilcox,  57  111.  180;  Reese  v.  Medlock,  27 
Tex.  120.  84  Am.  Dec.  611;  Frink  v.  Roe,  70  Cal.  296,  11  Pac.  820. 

«5  Brantley  v.  Insurance  Co.,  53  Ala.  554;  Taylor  v.  Harlow,  11 
Barb.  (N.  Y.)  232;  White  v.  Furgeson,  29  Ind.  App.  144,  64  N.  E. 
49;  Townshend  v.  Shaffer,  30  W.  Va.  176.  3  S.  E.  586.  The  au- 
thority conferred  must  be  determined  by  the  circumstances  under 
which  the  power  Ik  given,  the  person  to  whom  it  is  given,  and 
all  facts  surrounding  the  parties  at  the  time  of  the  execution  of 


ESTABLISHMENT  OF   AUTBORITV,  123 

§  81.  Ambiguous  authority.  Where  authority  has  been 
conferred  in  terms  reasonably  susceptible  of  two  different 
meanings,  and  the  agent  and  third  person,  with  whom  he 
deals,  in  .good  faith  adopt  one  of  them,  the  principal  will 
not  be  heard  to  say  that  he  intended  a  different  interpre- 
tation of  the  authority.^®  The  principal  must  bear  the 
consequence  of  a  departure  where  the  same  was  due  to  his 
failure  to  make  his  instructions  clear  and  unambiguous.®' 
This  rule  would  be  of  infrequent  application  in  the  case  of 
formal  powers  which  "are  not  subject  to  that  liberal  in- 
terpretation which  is  given  to  less  formal  instruments,  as 
letters  of  instruction,  etc.,  in  commercial  transactions  which 
are  interpreted  most  strongly  against  the  writer,  especially 
where  they  are  susceptible  of  two  interpretations,  and  the 
agent  has  acted  in  good  faith  upon  one  of  such  interpre- 
tations. ' ' " 

§  82,  For  principal's  benefit.  However  broad  and  gen- 
eral the  grant  of  authority  may  be,  it  will  be  construed, 
in  the  absence  of  expression  to  the  contrary,  as  giving 
power  to  act  only  for  the  benefit  of  the  principal  and  in  his 
behalf ;  ®*  and  not  as  authorizing  the  agent  to  engage  in 
business  in  his  own  behalf,  or  to  bind  the  principal  by 

the  writing.  Donnan  v.  Adams,  30  Tex.  Civ.  App.  615,  71  S.  W. 
580. 

66Winne  v.  Insurance  Co.,  91  N.  Y.  185;  Bessant  v.  Harris,  6S 
N.  C.  542;  National  Banlv  v.  Merchants'  Nat.  Bank,  91  U.  S.  92. 

67  Very  v.  Levy,  13  How.  (U.  S.)  345:  Minnesota  Linseed  Oil  Co. 
V.  Montague,  65  Iowa,  67,  21  N.  W.  184. 

6»  Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am.  Rep.  150. 

69  Adams  Express  Co.  v.  Trego,  35  Md.  47;  North  River  Bank  v. 
Aymar,  3  Hill  (N.  Y.),  262;  Camden  Safe  Deposit  Co.  v.  Abhott, 
44  N.  J.  Law,  257;  Wilson  v.  Wilson-Rogers,  181  Pa.  St.  80,  37 
Atl.  117. 


124  THE  LAW  OF  AGENCY. 

acts  done  for  the  benefit  of  the  agent  himself,  or  of  third 
persons/"  Thus  power  to  execute  bills  or  notes  does  not 
include  authority  to  execute  them  for  the  agent 's  own  bene- 
fit, or  as  an  accommodation  for  a  stranger/^ 

§  83.  Slight  deviations.  Where  authority  of  an  agent 
to  act  in  the  matter  involved  has  been  established  in  any 
of  the  ways  indicated,  the  fact  that  he  deviated  in  some 
particular  from  instructions  will  not  invalidate  the  trans- 
action where  the  deviation  was  of  so  slight  and  immaterial 
a  character  as  in  no  way  to  affect  the  substantial  rights  of 
the  principal.'^ 

§  84.  Severable  transaction.  Where  an  agent  exceeds 
bis  authority,  the  authorized  part  will  stand,  where  the 
transaction  is  clearly  severable.'^  "When  a  man,"  says 
Lord  Coke,  "doth  that  which  he  is  authorized  to  do  and 
more,  there  it  is  good  for  that  which  is  warranted  and  void 
for  the  rest. ' '  ^*  Thus  where  an  agent  authorized  to  malce 
a  sale,  without  authority  adds  warranties,*  the  purchaser 
may  enforce  so  much  of  the  contract  as  was  within  the 
agent's  power  to  make;"  and  where  an  agent  authorized 

70  Wallace  v.  Bank,  1  Ala.  565;  Kean  v.  Landrum,  72  S.  C.  556. 
fj2  S.  E.  421 ;  All)iight  v.  Atchinson.  etc.,  Ry.  Co.,  137  Iowa,  631, 
115  N.  W.  219. 

•  '  Giilick  V.  Grover,  33  N.  J.  Law,  463,  97  Am.  Dec.  728. 

72  Huntley  v.  Mathias,  90  N.  C.  101,  47  Am.  Rep.  516.  Where  the 
authority  is  particular,  however,  it  must  be  followed. 

"Drumright  v.  Philpot,  16  Ga.  424,  60  Am.  Dec.  738;  Stowell  v. 
Bldred,  39  Wis.  614;  Moore  v.  Thompson,  32  Me.  497. 

74  Coke.  Lit.  258. 

76Vanada  v.  Hopkins,  24  Ky.  285,  19  Am.  Dec.  92;  Reed  v.  Sey- 
mour, 24  Minn.  273;  Smith  v.  Tracy,  36  N.  Y.  79;  Kane  v.  Sholars. 
41  Tex.  Civ.  App.  154,  90  S.  W.  937.  The  other  party  may.  of 
course,  refuse  to  abide  by  the  contract  If  the  principal  repadia- 
tes  the  warnmty. 


ESTABLISHMENT   OF   AUTHORITY.  12;> 

to  purchase  a  stated  amount  of  property,  orders  more  than 
directed,  the  principal  will  be  liable  for  the  amount  which 
he  authorized/®  So,  the  unauthorized  affixing  of  a  seal 
to  a  contract,  not  required  to  be  under  seal,  may  be  disre- 
garded and  the  agreement  stand  as  the  authorized  simple 
contract.'' 

§  85.  Public  officers.  The  authority  of  a  public  officer 
to  act  in  a  particular  transaction  could  be  established  only 
by  showing  that  power  to  do  the  act,  or  make  the  contract, 
was  expressly,  or  by  necessary  implication,  conferred  by 
law."  Here,  the  authority  is  a  matter  of  public  record, 
and  all  persons  are  bound  to  take  notice  whether  it  exists 
iit  all  and  if  so,  what  is  its  nature  and  extent.'*^ 

76  Gano  V.  Chicago,  etc.,  Ry.,  49  Wis.  57,  5  N.  W.  45. 

77  Morrow  v.  Higgins,  29  Ala.  448;  Baum  v.  Dubois,  43  Pa.  St. 
260;  Long  v.  Hartwell,  34  N.  J.  Law,  116;  Worrall  v.  Munn,  5  N. 
Y.  229,  55  Am.  Dec.  330. 

78  Whiteside  v.  United  States,  93  U.  S.  247;  Mayor  of  Baltimore 
V.  Eschbach,  18  Md.  282. 

79  state  V.  Hastings,  10  Wis.  518;  Hull  v.  Marshall  County,  12 
Iowa,  270;  State  v.  Hays,  52  Mo.  578;  Delafield  v.  State  of  Illi- 
nois, 26  Wend.  (N.  Y.)  192. 


CHAPTER  Vm. 

CONSTRUCTION  OF  AUTHORITY. 

§  86.  In  general. 

87.  Express  authority. 

(a)  Written  authority. 

(b)  Oral  authority, 

88.  Implied  authority. 

89.  Implication  as  to  extent  of  authority. 

(a)  Medium  powers. 

(b)  Power  implied  from  usage. 

90.  Contrary  restrictions. 

91.  Apparent  authority. 

92.  General  and  special  agents. 

93.  Notice  of  limitations. 

94.  Summary. 

§  86.  In  general.  As  explained  in  the  preceding  chap- 
ter, the  existence  of  an  agency  may  be  established  by  evi- 
dence of  an  express  written  or  oral  appointment ;  or  by 
proof  of  facts  from  Avhieh  such  appointment  is  necessarily 
inferred.  So,  acts  or  conduct  may  be  sliown  sufficient  t(i 
estop  the  alleged  principal  to  deny  aulliority  of  the  agent 
Where  the  fact  of  an  agency — the  existence  of  the  main 
autliority — has  been  established,  in  any  of  the  ways  indi- 
cated, the  question  then  arises  as  to  the  extent  of  the  agent's 
power  imder  the  grant  of  authority  shown  to  have  been 
given.  Wa.s  it  broad  enough,  for  instance,  to  include  per- 
formance of  some  collateral  act  or  the  making  of  some  in- 
cidental agreement?  In  short,  once  the  existence  of  an 
agency  has  been  established,  the  necessity  arises  of  con- 
slniing  tlie  grant  of  autborily — -be  it  express  or  implied — 


CONSTRUCTION    OF    AUTHORITY.  127 

SO  as  to  determine  the  exact  extent  or  limitation  of  the 
agent's  power.  Just  as  the  fact  of  an  agency — the  exist- 
ence of  the  main  power — may  be  evidenced  by  express  ap- 
pointment, or  may  be  implied  from  facts  which  raise  an 
inference  of  its  existence,  so,  as  we  shall  now  see,  the  ex- 
tent of  the  agent's  authority  may  be  expressly  prescribed 
and  limited  by  his  principal ;  or  it  may  be  implied  from 
the  nature  of  the  agency,  or  the  facts  and  circumstances 
of  the  case. 

§  87.  Express  authority.  (a)  Written  authority. 
Where  authority  of  an  agent  is  required  by  law  to  be  in 
Avritiug,  or  the  person  dealing  with  him  knows  that  he  aet.s 
under  written  instructions,  proof  of  existence  of  the  agency, 
as  we  have  seen,  can  be  made  only  by  production  of  the 
writing.^  So,  the  extent  of  the  agent's  authority  can  be 
determined  only  from  a  construction  of  the  written  power.- 
To  bring  an  act  within  the  scope  of  the  agent's  authority, 
it  must  appear  from  a  fair  construction  of  the  writing  that 
the  authority  is  to  be  found  within  the  four  comers  of  the 
instrument,  either  by  express  terms  or  necessary  implica- 
tion.^ In  construing  the  instrument,  the  object  of  the 
parties  will  be  kept  in  view,  and  hence,  if  its  language  per- 
mits, the  law  will  imply  authority  in  the  agent  to  perform 

lAnte  §  80. 

zBissell  V.  Terry,  69  111.  184;  Equitable  Life  Assur.  Soc.  v.  Poe, 
'3  Md.  28;  DeRutte  v.  Miildrow,  16  Cal.  505.^  The  aiUhoritj^  given 
by  a  power  of  attorney  is  not  to  be  extended  beyond  the  meaning 
3f  the  terms  in  which  it  is  expressed.  Brantley  v.  Southern  Life 
Ins.  Co.,  53  Ala.  554. 

3 Wood  V.  Goodridge,  6  Cush.  (Mass.)  117.  52  Am.  Dec.  771; 
Jeffrey  v.  Hursh,  49  Mich.  31,  12  N.  W.  898;  Gilbert  v.  How,  45 
Minn.  121,  47  N.  W.  643;  Penfold  v.  Warner,  96  Mich.  179,  55  N. 
W.  '680.  A  power  of  attorney  merely  to  sell  land  implies  a  sale 
for  cash.    Dyer  v.  Duffy,  39  W.  Va.  148,  19  S.  E.  540. 


128  THE  LAW  OF  AGENCY. 

such  acts  as  are  reasonably  necessary  to  tlie  execution  of 
the  main  power  given ;  *  and,  so,  evidence  of  a  well  estab- 
lished usage  would  be  admissible  for  the  single  purpose  of 
aiding  the  court  in  a  correct  interpretation  of  the  instru- 
ment.^ Where,  however,  authority  of  the  agent  is  clearly 
defined,  and  its  mode  of  performance  definitely  prescribed, 
there  exists  no  occasion  for  inference  or  implication.® 

(b)  Oral  authority.  Where  an  agency  is  established  by 
proof  of  express  oral  appointment,  the  extent  of  the  agent's 
authority  will,  as  in  the  case  of  written  authority,  be  lim- 
ited by  express  restrictions  imposed  on  him  by  the  princi- 
pal ; '  and  if  these  amount  to  explicit  directions  as  to  the 
mode  of  performance,  the  extent  of  the  agent's  authority 
will  not  be  broadened  by  implication.^  Although,  as  we 
shall  presently  see,  lack  of  knowledge  of  such  limitations 
may  save  the  rights  of  third  persons  with  whom  the  agent 
has  dealt.'' 

•«  Holladay  v.  Daily,  19  Wall.  (U.  S.)  606;  Marr  v.  Given,  23 
Me.  55.  39  Am.  Dec.  600;  American  Bonding  Co.  v.  Ensey,  105  Md. 
211,  65  Atl.  921;  Posner  v.  Bayless,  59  Md.  56.  Authority  delega- 
ted by  formal  instrument  will  not  be  extended  beyond  what  is 
necessary  to  carry  into  effect  the  power  expressly  conferred. 
Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am.  Rep.  150. 

•'■Heath  v.  Nutter,  50  Me.  378;  Peters  v.  Farnsworth,  15  Vt. 
155,  40  Am.  Dec.  071  ;    Silverman  v.  Bullock.  98  111.  11. 

c  Usage  may  be  admissible  to  e.\i)lain  what  is  doubtful  but 
never  to  contradict  what  is  plain.    Gibney  v.  Curtis,  61  Md.  192. 

7  Baxter  v.  Linicnt,  60  111.  237;  Siebold  v.  Davis,  67  Iowa,  560, 
25  N.  W.  778;  Thornton  v.  Boyden,  31  111.  200. 

sMcChing  v.  Spotswood,  19  Ala.  165;  Kane  v.  Barstow.  42  Kan. 
465,  22.Pac.  5S8;  Atchison,  etc.,  Ry.  v.  Watson,  71  Kan.  696,  81 
Pac.  499;  Monson  v.  Kill,  144  111.  248,  33  N.  E.  43;  Cruzan  v. 
Smith.  41  Ind.  288. 

0  Post  §  91. 


CONSTRUCTION    OP    AUTHORITY.  121) 

§  88.  Implied  authority.  Where  existence  of  the 
agency  itself  is  implied,  tlie  extent  of  the  agent's  authority 
is,  of  course,  left  entirely  to  implication.  But  just  as  the 
fact  of  the  agency  is  inferred  only  when  the  evidence  pro- 
duced reasonably  gives  rise  to  that  inference,^"  so,  only 
such  implication,  as  to  the  extent  of  the  authority,  will  be 
indulged  as  the  nature  of  the  implied  agency  clearly  war- 
rants.^^  Thus,  the  fact  that  an  agency  to  lease  a  house  is 
established  by  implication,  would  not  justify  an  inference 
of  authority  in  the  agent  to  agree  to  an  unusual  or  unrea- 
sonable covenant  in  the  lease;  though  authority  would  be 
implied  to  make  reasonable  agreements,  such  as  one  for 
payment  of  monthly  rent  in  advance,  especially  if  such 
mode  of  payment  were  shown  to  be  a  customary  practice. ^^ 

§  89.  Implication  as  to  extent  of  authority,  (a)  Me- 
dium powers.  AVhere  existence  of  an  agency  has  been  es- 
tablished by  proof  of  either  express  or  implied  appoint- 
ment ;  in  the  absence  of  express  limitations  to  the  contrary, 
the  law  will  imply  authority  in  the  agent  to  perform  such 
collateral  acts,  or  to  make  such  incidental  agreements,  as 
are  reasonably  necessary  to  the  proper  execution  of  the 
power  shown  to  have  been  given. ^^     Though  we  say  that 

10  Ante  §  79  (b). 

11  Geyiin  v.  DeVilleroi,  2  Houst.  (Del.)  311;  McAlpine  v.  Cas- 
sidy,  17  Tex.  449;  Wilcox  v.  Railway.  24  Minn.  269;  Aldrich  V. 
Wilmarth,  3  S.  D.  525,  54  N.  W.  811;  Graves  v.  Horton,  38  Minn 
66,  35  N.  W.  5G8. 

12  Post  §  89. 

13  Sprague  v.  Glllett  ,9  Mete.  (Mass.)  91;  Williams  v.  Getty, 
31  Pa.  St.  461,  72  Am.  Dec.  757;  Hardee  v.  Hall,  12  Bush.  (Ky.) 
327;  Barnes  v.  Hannibal,  71  Mo.  449;  Dunwoody  v.  Saunders,  50 
Fla.  202,  39  South.  965;  Daniel  v.  Atlantic  Coast  Line  Ry.  Co., 
136  N.  C.  517,  48  S.  E.  816;  First  Nat.  Bank  v.  Dutcher,  128  Iowa, 
413,  104  N.  W.  497. 

9 


130  THE  LAW  OF  AGENCY. 

the  law  will  imply  the  existence  of  these  medium  powers, 
such  implication  is  not  a  conclusion  of  law,  but  rather  a 
presumption  of  fact,  or  an  inference  of  intention ;  for  where 
a  person  confers  authority  upon  an  agent,  without  restric- 
tion, the  inference  is  most  natural  that  he  intends  the  agent 
to  exercise  some  discretion  and  to  perform  such  acts  as 
are  reasonably  necessary  to  the  accomplishment  of  the  pur- 
pose of  the  agency.^*  What  is  reasonably  necessary  would 
be  a  question  of  fact,  depending  on  the  purpose  of  the 
agency,  and  the  circumstances  of  the  particular  case.^^ 
Thus,  where  an  agent  was  authorized  to  secure  the  imme- 
diate possession  of  a  store  room,  the  jury  might  be  justified 
in  finding  that  he  had  implied  power  to  pay  a  reasonable 
bonus  for  possession,  if  the  same  could  not  otherwise  be  se- 
cured ;  ^*  so,  an  agent  authorized  to  hurry  forward  goods 
and  to  see  that  there  is  no  delay  in  shipping  them,  would 
undoubtedly  have  implied  power  to  pay  wharfage,  due  on 
the  goods,  to  release  them  from  a  lien  under  which  they 
could  be  held ;  ^"^  and  an  agent  authorized  to  travel  about 

1*  Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dec.  384;  LeRoy 
V.  Beard,  8  How.  (U.  S.)  451. 

15  Gilchrist  v.  Pearson,  70  Miss.  351,  12  South.  333;  Broclvway 
V.  MuUin,  46  N.  J.  Law,  448,  50  Am.  Rep.  442;  Harvey  v.  Mason 
City,  etc..  Ry.,  126  Iowa,  4G5,  105  N.  W.  958;  Providence  Mach. 
Co.  V.  Browning,  72  S.  C.  424,  52  S.  E.  117;  St.  Louis  Gunning  Adv. 
Co.  V.  Wanamaker  &  Brown,  115  Mo.  App.  270,  90  S.  W.  737;  Niel- 
sen V.  Northeastern  Siberian  Co.,  40  Wash.  194,  82  Pac.  292.  The 
authority  to  contract  so  as  to  bind  the  principal  is  limited  to  th? 
usual  and  ordinary  means  of  accomplishing  the  business  intrusted 
to  the  agnnt.     Williams  v.  Getty,  31  Pa.  St.  461,  72  Am.  Dec.  757. 

16  Provided  Iho  principal  knew  at  the  time  of  appointment  that 
such  bonus  would  probably  be  demanded.  Shackman  v.  Little, 
87  Ind.  181. 

17  Robison  V.  Iron  Co.,  39  ITun  (N.  Y.),  634.  An  agent  selling 
furnaces  for  specific  use,  to  be  shipped  by  vendor  In  detached 
parts,  has  Implied    authority   to   contract   for    putting    them    to- 


CONSTRUCTION    OF    AUTHORITY.  131 

the  coimtiy  to  sell  goods,  would  ordinarily  be  held  to  have 
implied  authority  to  hire  a  horee  to  enable  him  to  go  from 
place  to  place."  Power  to  collect  money  might  be  of  such 
a  general  character  as  to  warrant  an  inference  of  author- 
ity to  sue  upon  a  claim  and  cause  execution  to  issue ;  ^® 
and  power  to  bring  suit  would  imply  authority  to  employ 
counsel  to  conduct  the  same.^*>  An  agent  authorized  to 
receive  and  sell  certain  goods  and  to  pay  himself  a  debt 
from  the  proceeds  would  have  implied  authority  to  bring 
an  action  against  a  person  wrongfully  withholding  pos- 
session ;  -^  and  an  attorney  authorized  by  one  of  the  parties 
to  an  arbitration  to  pay  the  amount  awarded  against  him, 
and  to  do  what  is  necessary  in  the  matter,  would  have  im- 
plied power  to  execute  a  release  required  by  the  award."" 
So,  an  agent  authorized  to  secure  subscriptions  to  a  stock 
company,  formed  for  the  purpose  of  controlling  certain 
land,  would  have  implied  power  to  make  representations 
as  to  the  location  and  value  of  the  laud ;  -^  and  an  agent 

gether  and  placing  them  in  the  building  where  thej-  are  to  be  used. 
Boynton  Furnace  Co.  v.  Clark,  42  Minn.  335,  44  N.  W.  121. 

18  Huntley  v.  Mathias,  90  N.  C.  101,  47  Am.  Rep.  51G. 

isMcMinn  v.  Richtmyer,  3  Hill  (N.  Y.),  236;  Bush  v.  Miller,  13 
Barb.  (N.  Y.)  481;  Davis  v.  Waterman,  10  Vt.  526,  33  Am.  Dec. 
216;  Moore  v.  Hall,  48  Mich.  145,  11  N.  Wi.  844. 

20  Buckland  v.  Conway,  16  Mass.  396. 

21  Curtis  V.  Barclay,  7  D.  &  R.  (Eng.)  539,  5  B.  &  C.  141;  Arden 
V.  Soileau,  16  La.  28. 

22  Dawson  v.  Lawley,  4  Esp.  (Eng.)  65.  Authority  of  an  agent 
to  settle  a  claim  does  not  imply  authority  to  submit  the  same  to 
arbitration.  Huber  v.  Zimmerman,  21  Ala.  488,  56  Am.  Dec.  255. 
Nor  will  authority  to  submit  to  arbitration  imply  power  to  con- 
firm the  award.  Bullitt  v.  Musgrave,  3  Gill.   (Md.)   31. 

23Sandford  v.  Handy,  23  Wend.  (N.  Y.)  260.  So,  an  agent  em- 
powered to  employ  a  real  estate  broker  to  sell  land,  is  authorized 
to  give  the  broker  a  description  of  it  Griswold  v.  Gebbie,  126 
Pa.  St.  353,  17  Atl.  673. 


132  THE  LAW  OF  AGENCY. 

empowered  to  enter  into  a  contract,  clearly,  has  authority 
to  sign  a  memorandum  to  satisfy  the  statute  of  frauds.^^ 
Further  examples  of  medium  or  incidental  powers,  implied 
from  the  nature  of  the  agency,  will  be  given  in  a  succeeding 
chapter.-^ 

(b)  Power  implied  from  usage.  Just  as  authority  to 
exercise  medium  powers  is  implied  from  the  fact  of  unre- 
stricted appointment,  so,  in  the  absence  of  direction  to  the 
contrary,  an  implication  arises  of  authority  in  an  agent  to 
act  in  accordance  with  well  established  usages  of  the  busi- 
ness for  which  he  was  engaged.-^  If  the  usage  is  estab- 
lished, the  principal  may  be  presumed  to  know  of  it,^^  and 
his  failure  to  instruct  the  agent  otherwise,  implies  consent 
to  abide  by  the  same.^^  Thus  a  broker  emploj^ecl  to  trans- 
act business  in  a  particular  place,  has  implied  authority 
to  act  in  accordance  with  the  business  usages  of  that 
place ;^^  and  if  a  member  of  a  stock  exchange,  he  has  im- 
plied authority  to  buy  and  sell  in  accordance  with  the  rules 
or  usages  of  such  exchange.^"     So,  an  agent  to  sell  prop- 

24  Johnson  v.  Dodge,  17  111.  433;  Keim  v.  Lindley  (N.  J.  Eq.). 
30  Atl.  10C3. 

25  Post,  Chap.  IX. 

20  Upton  V.  County  Mills,  11  Cush.  (Mass.)  589,  59  Am.  Dec.  163; 
Sumner  v.  Stewart,  69  Pa.  St.  321;  Kraft  v.  Fancher,  44  Md.  204; 
Corbett  v.  Underwood,  83  111.  324,  25  Am.  Rep.  392;  Pickert  v. 
Marston,  68  Wis.  4C5,  32  N.  W.  550. 

27  Guesnard  v.  Railway  Co.,  76  Ala.  453;  Bailey  v.  Bensley,  87 
ni.  556;  Hibbard  v.  Peek,  75  Wis.  619,  44  N.  W.  641;  Milwaukee, 
3tc.,  Inv.  Co.  V.  Johnston,  35  Neb.  554,  53  N.  W.  475.  If  the  usage 
was  a  local  and  particular  one,  the  principal  may  show  that  he 
did  not  know  of  it.  Walls  v.  Bailey,  49  N.  Y.  464;  Barnard  v.  Kel- 
logg, 10  Wall.  (U.  S.)  383. 

28  Story  on  Agency,  §  96. 

20  Bailey  v.  HonKloy,  87  111.  556;  White  v.  Fuller,  C7  Barb.  (N. 
T.)   207;   Sniytlif  v.  Parsons.  37  Kan.  79,  14  Pac.  444. 


CONSTRUCTION    OP    AUTHORITY.  138 

erly  has  implied  power  to  make  such  warranties  as  are 
usually  and  ordinarily  made  in'  sales  of  like  character  at 
the  same  time  and  place.^^  Thus,  where  it  was  an  estab- 
lished usage  of  the  New  York  stock  exchange  that  a  war- 
ranty of  commercial  character  should  accompany  sales  of 
promissory  notes,  an  agent  authorized  to  sell  such  paper, 
was  held  to  have  implied  authority  to  make  such  war- 
ranty ;*2  and  where  it  was  the  custom  in  ordering  goods, 
not  present  for  inspection,  to  require  a  warranty  of  their 
quality,  an  agent  authorized  to  make  a  sale,  would  have 
implied  power  to  bind  his  principal  by  such  warranty."'' 
So,  where  sales  of  machines  or  implements  are  usually  ac- 
companied by  warranty  of  fitness,  an  agent  authorized  to 
make  such  sales,  has  implied  authority  to  give  the  usual 
warranty ;  ^*  and  he  may  also  bind  his  principal  by  an 
agreement  to  sell  upon  trial,  with  privilege  of  returning 
if  unsatisfactory,  where  implements  of  like  character  ar^' 
customarily  sold  upon  such  conditions.'^^ 

§  90.  Contrary  restrictions.  Where  the  principal  has 
expressly  imposed  restrictions  to  the  contrary,  no  implica- 
tion could  arise  of  authority  to  exercise  medium  powers. 

soAhern  v.  Goodspeed,  72  N.  Y.  108;  Bibb  v.  Allen,  149  U.  S. 
481,  13  Sup.  Ct.  950;  Skiff  v.  Stoddard,  63  Conn.  198,  26  Atl.  874. 

31  Smith  V.  Tracy,  36  N.  Y.  82;  Herring  v.  Skaggs,  62  Ala.  180. 
34  Am.  Rep.  4;  Pickert  v.  Marston,  68  Wis.  465,  32  N.  W.  550; 
Decker  v.  Fredericks,  47  N.  J.  Law,  469;  Morris  V.  Bowen,  52  N. 
H.  416;  Applegate  v.  Moffitt,  60  Ind.  104. 

32  Ahern  v.  Goodspeed,  72  N.  Y.  108. 
33Talmadge  v.  Bierhause,  103  Ind.  270,  2  N.  E.  716. 
34McCormick  v.  Kelly,  28  Minn.  135,  9  N.  W.  675. 

35  Deering  v.  Thorn,  29  Minn.  120;  Oster  v.  Mickley,  35  Minn. 
245.  Having  sold  upon  condition  that  if  the  machine  does  not 
prove  satisfactory,  the  purchaser  shall  return  it,  the  agent  may 
waive  such  return.     Pitsinowsky  v.  Beardsley,  37  Iowa,  9. 


134  THE  LAW  OF  AGENCY. 

or  to  execute  the  agenc}'  in  accordance  with  even  well  es- 
tablished usage.  There  can  be  no  implication  of  author- 
ity contrary  to  express  limitations.^^  Where,  however,  such 
express  restrictions  are  not  known  to  a  third  person  with 
whom  the  agent  deals,  he  ordinarily  may  assume  that  the 
agent  has  such  authority  as  is  usually  possessed  by  agents 
of  like  character,  and  may  bind  the  principal  accordingly. 
In  such  case  the  agent  is  said  to  have  acted  within  the  scope 
of  his  apparent  authority.*^ 

§  91.  Apparent  autharity.  The  doctrine  of  apparent 
authority  may  be  said  to  be  based  on  that  of  estoppel, 
though  eases  might  arise  in  which  the  doctrine  would  be 
applied  where,  strictly,  all  the  elements  of  estoppel  did  not 
concur.^^  Where  a  person  holds  another  out  as  his  agent, 
the  inference,  as  we  have  seen,  arises  that  such  agent  has 
authority  to  act  in  accordance  with  well  established  usage. 

36  Towle  V.  Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195;  Stainback  v. 
Read,  11  Grat.  (Va.)  281,  62  Am.  Dec.  648;  Bryant  v.  Moore,  26 
Me.  84,  45  Am.  Dec.  96;  Wood,  etc.,  Mach.  Co.  v.  Crow,  70  Iowa. 
340,  30  N.  W.  609. 

37  Browning  v.  McNear,  145  Cal.  272,  78  Pac.  722.  If  a  prin- 
cipal holds  out  his  agent  as  having  a  greater  than  his  real  au- 
thority, third  persons  dealing  with  him,  under  this  mistaken 
belief,  can  hold  the  principal  to  the  extent  of  the  apparent  au- 
thority.   Dodge  V.  McDonnell,  14  Wis.  553;  Post  §  91. 

.-18  Thus,  the  third  paity  need  not  show  that  at  the  time  of  deal- 
ing with  an  agent  he  knew  of  the  existence  of  the  usage;  and 
hence  could  not  be  said  to  have  to  establish  that  he  relied  on  the 
agent's  authority  to  act  in  accordance  therewith.  So,  the  prin- 
cipars  representation  of  his  agent's  actual  authority  need  not 
have  come  to  the  third  party's  notice;  the  latter  may  take  a 
chance  as  to  the  existence  of  the  agency  and  still  hold  the  prin- 
cipal to  acts  wilhin  the  ajiparent  scope  of  the  agent's  authority,  if 
it  turns  out  that  there  really  was  an  agency.  The  doctrine  of 
ajiparont  authority,  therefore,  is  not  merely  an  application  of 
tcrhnicfil  cstopficl. 


CONSTRUCTION    OF    AUTHORITY/  135 

and  to  perform  such  acts  as  are  necessary  to  the  accom- 
plishment of  the  agency.^^  -  This  inference,  of  course,  could 
not  be  said  to  arise  in  the  face  of  contrary  instructions. 
Nevertheless,  it  will  be  indulged  in  favor  of  third  persons 
who  dealt  in  good  faith  with  the  agent  without  knowledge 
of  the  limitation  upon  his  power ;  or  rather,  as  against  such 
persons,  the  principal  will  be  estopped  to  set  up  such  un- 
disclosed limitation.*"  "Where  a  man,  therefore,  appoints 
an  agent  and  fails  to  disclose  unusual  restrictions  upon  his 
authority,  innocent  third  persons,  dealing  with  him,  may 
assume  that  the  agent  has  such  power  as  is  ordinarily  pos- 
sessed by  agents  of  like  character,  and  which  would  have 
been  possessed  by  this  particular  agent  in  the  absence  of 
such  unusual  restrictions.*^  Within  the  scope  of  this,  his 
apparent  authority,  the  agent  may  bind  the  principal;  and 
the  scope  of  his  apparent  authority  will  be  coextensive 
with  what  would  have  been  the  scope  of  his  actual  implied 

39  Ante  §  89. 

ioAldrich  v.  Wilmarth,  3  S.  D.  525,  54  N.  W.  811;  Putnam  v. 
French,  53  Vt.  402,  38  Am.  Rep.  682;  Byrne  v.  Packing  Co.,  137 
Mass.  313;  Rathburn  v.  Snow,  123  N.  Y.  343,  25  N.  E.  379;  Trainer 
V.  Morison,  78  Me.  160,  3  Atl.  185;  Lister  v.  Allen,  31  Md,  543,  100 
Am.  Dec.  78;  Wheeler  v.  McGuire,  86  Ala.  398,  5  South.  190;  Fat- 
man  V.  Leet,  41  Ind.  133;  Baker  v.  Produce  Co.,  113  Mich.  533,  71 
N.  W.  866;  Reynolds  v.  Chicago,  etc.,  Ry.  Co.,  114  Mo.  App.  670, 
90  S.  W.  100. 

41  Brooke  v.  New  York,  etc.,  Ry.  Co.,  108  Pa.  St.  529,  1  Atl.  206; 
Law  V.  Stokes,  32  N.  J.  Law,  249.  90  Am.  Dec.  655;  Williams  v. 
Getty,  31  Pa.  St.  461,  72  Am.  Dec.  757;  Bently  v.  Doggett,  51  Wis. 
224,  8  N.  W.  155;  Oberne  v.  Burke,  30  Neb.  581,  46  N.  W.  838;  Hay- 
ward  Lumber  Co.  v.  Cox  (Tex.  Civ.  App.),  104  S.  W.  403;  Grand 
Rapids  Electric  Co.  v.  Walsh  Mfg.  Co.,  142  Mich.  4,  105  N.  W.  1. 
The  apparent  authority  of  an  agent  which  will  bind  his  principal 
is  such  authority  as  the  agent  appears  to  have  by  reason  of  the 
actual  authority  which  he  possesses.  Brown  v.  Eno,  48  Neb.  538, 
('7  N.  W.  434. 


136  THE  LAW  OF  AGENCY. 

authority  had  there  been  an  absence  of  contrary  limita- 
tions. "Every  agency,"  said  the  court  in  a  Minnesota 
ease,  "carries  with  it,  or  includes  in  it,  the  authority  to  do 
whatever  is  usual  and  necessary  to  carry  into  effect  the 
main  power ;  and  the  principal  can  not  restrict  his  liability 
for  acts  of  the  agent  within  the  apparent  scope  of  his  au- 
thority by  private  instructions  not  communicated  to  those 
with  whom  he  deals.  "*^ 

Thus,  a  principal  is  bound  by  a  warranty  given  by  an 
agent,  authorized  to  make  a  sale,  notwithstanding  contrary 
instructions,  where  the  warranty  was  a  customary  one,  and 
the  buyer  was  unaware  of  the  unusual  limitation  on  the 
agent's  power.*'  So,  where  an  agent  was  authorized  to 
travel  about  the  country  to  sell  goods,  he  would  have  im- 
plied power  to  hire  a  conveyance  to  go  from  place  to  place, 
and  hence  the  principal  would  be  liable  to  a  liveiyman  who 
furnished  a  conveyance,  although,  unknown  to  the  livery- 
man, the  agent  had  been  provided  with  money  for  this 
purpose  and  forbidden  to  pledge  his  principal's  credit.*^ 
"From  the  nature  of  the  business  required  to  be  done  by 
their  agent,"  said  the  court,  "the  defendants  held  out  to 
those  who  might  have  occasion  to  deal  witli  him  that  he  had 
the  right  to  contract  for  use  of  teams  and  carriages  neces- 
sary and  convenient  for  doing  such  business,  in  the  name 
of  the  principals,  if  he  saw  fit,  in  the  way  such  service  is 

"2  Watts  V.  Howard,  70  Minn.  122,  72  N.  W.  840.  The  creation 
of  an  agency  clothes  the  agent  with  such  authority  as  is  proper 
and  necessary  to  effectuate  its  purpose.  Kearns  v.  Nickse,  80 
Conn.  23.  66  Atl.  779. 

^ailayncr  v.  Churchill,  29  Mo.  App.  076;  Boothby  v.  Scales,  27 
Wis.  636;  Stewart  v.  Cowles,  67  Minn.  184,  69  N.  W.  695;  Furneaux 
V.  Esterly,  36  Kan.  539,  13  Pac.  824. 

<«BenUey  v.   Do^gett,  51  Wis.  224,  8  N.  W.  155;   Huntley  v. 
Mathi;iH.  00  N.  C.  lOl.  17  Am.  Rep.  516. 


CONSTRUCTION    OP    AUTUOKITY.  137 

usually  contracted  for."**  And  so,  where  an  agent  was 
authorized  to  sell  goods  on  commission,  and  it  was  a  usual 
mcident  to  such  power  to  fix  the  terms  of  sale,  including 
the  mode  of  delivery,  and  the  time  and  manner  of  payment ; 
and  the  agent  contrary  to  instructions  sold  goods  on  credit, 
which  were  expressed  by  the  principal  to  the  buyer  marked 
(J.  0.  D.,  the  expressman,  having  no  knowledge  of  the 
agent 's  want  of  authority,  was  held  to  be  justified  in  releas- 
ing the  goods,  upon  the  agent's  order,  without  payment. 
' '  The  agent, ' '  said  the  court,  ' '  was  apparently  clothed  with 
authority  to  sell  the  plaintiff's  goods,  for  cash  or  on  credit, 
as  he  might  think  proper;  and  this  being  so,  he  must  be 
regarded,  in  respect  to  third  persons,  as  the  plaintiff's  gen- 
eral agent  whose  authority  would  not  be  limited  by  instruc- 
tions not  brought  to  the  notice  of  such  third  persons.  As 
the  agent,  then,  in  respect  to  third  persons,  had  power  to 
sell  on  credit,  the  authority  to  control  the  delivery  would 
necessarily  come  within  the  scope  of  his  agency;  and  we 
think  his  order  to  the  defendant  would  justify  a  delivery 
of  the  goods  without  payment,  unless  he  had  notice  of  the 
agent's  want  of  authority.  As  to  him  the  agent's  apparent 
authority  was  real  authority. "  ^° 

§  92.  General  and  special  agents.  Liability  of  a  princi- 
pal for  acts  done  within  the  apparent,  though  beyond  the 
actual,  scope  of  his  agent's  authority,  is  so  far  based  upon 
the  doctrine  of  estoppel  as  to  arise  only  where  third  per- 
sons were  justified  in  relying  upon  the  agent's  apparent 
authority,  and  where  responsibility  for  the  creation  of  such 
appearance  of  authority  can  be  traced  ultimately  to  some 

«  Bentley  v.  Doggett,  supra. 

46  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56.  12  Am.  Rep.  45. 


138  THE  LAW  OF  AGENCY. 

act  or  omission  of  the  principal.*'  If  third  persons  have 
not  been  misled  b}^  conduct  of  the  principal;  or  if  they 
knew,  or  ought  to  have  known,  of  limitations  upon  the 
agent's  powers,  they  can  not  bind  the  principal  by  acts 
done  beyond  the  actual  scope  of  the  agent's  authority.*^ 
In  application  of  this  principle,  many  authorities  have  been 
led  to  lay  down  the  broad  proposition  that  the  doctrine  of 
apparent  authority  can  arise  only  in  the  case  of  a  general 
agent;  since,  it  is  maintained,  when  a  man  appoints  a  spe- 
cial agent  he  holds  him  out  merely  as  possessing  such  power 
as  has  been  actually  and  specifically  given ;  and  hence  there 
is  no  ground  for  inference  as  to  the  nature  or  extent  of  that 

47  Kane  v.  Barstow,  42  Kan.  465,  22  Pac.  588;  Aldrich  v.  Wil- 
marth,  3  S.  D.  525,  54  N.  W.  811;  Brockway  v.  Mullin,  46  N.  J. 
Law,  448,  50  Am.  Rep.  442;  Briggs  v.  Taylor,  35  Vt.  57;  Fred  W. 
Wolf  Co.  V.  Galbraitli,  39  Tex.  Civ.  App.  351,  87  S.  W.  390.  A  pur- 
chase of  goods  from,  and  payment  to,  one  who  had  formerly  been 
authorized  by  the  owner  to  solicit  orders,  but  never  held  out  as 
authorized  to  sell,  confers  no  right  on  the  purchaser.  Abrahams 
V.  Weiller,  87  111.  179.  The  principal  is  liable  only  where  he  has 
clothed  the  agent  with  the  appearance  of  authority  to  act  in  the 
particular  case.  Wilcox  v.  Routh,  17  Miss.  476.  An  agent  pur- 
suing the  method  in  which  he  usually  transacts  business  for  the 
principal  may  be  deemed  clothed  with  necessary  authority. 
Brooke  v.  New  Yoik,  etc.,  Ry.  Co.,  108  Pa.  St.  529,  1  Atl.  206, 

48  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45; 
Johnson  v.  Jones,  4  Barb.  (N.  Y.)  3G9;  Higgins  v.  Armstrong,  9 
Colo.  38,  10  Pac.  232;  Bank  of  Morgantown  v.  Hay,  143  N.  C.  326, 
55  S.  E.  811;  Hutsoh  v.  Prudential  Ins.  Co.,  122  Ga.  847,  50  S.  E. 
1000;  Hastings  Nat.  Bank  v.  Farmers'  Bank,  56  Neb.  149,  76  N. 
W.  430.  Where  authority  of  an  agent  is  limited,  the  principal  is 
not  lialile  to  third  persons,  having  notice  of  such  limitations,  for 
acts  done  in  violation  thereof.  Marvin  v.  Universal  Life  Ins.  Co., 
85  N.  Y.  278,  39  Am.  Rep.  657. 

"Baxter  v.  Lamont,  CO  111.  237;  Siebold  v.  Davis,  67  Iowa,  560, 
25  N.  W.  778;   Lovett,  Hart  &  Phipps  Co.  v.  Sullivan,  189  Ma«s. 


CONSTRUCTION    OF    AUTHORITY.  139 

pOM'er.'"'  Such  a  hard  and  fast  rule,  it  is  believed,  can  not 
be  adopted,  unless  a  very  limited  meaning  be  given  to  the 
term  special  agent. ^°  A  broker  authorized  to  make  a  single 
sale  is  clearly  a  special  agent,  yet  he  is  held  out  by  the 
principal  as  having  power  to  act  in  accordance  with  usage, 
and  could,  undoubtedly,  bind  the  principal  within  the  scope 
of  his  usual  or  apparent  authority.^^  "We  think,"  says  a 
learned  author,  "that  the  distinction  between  a  general 
;igency  and  a  special  agent  useful,  and  sufficiently  definite, 
for  practical  purposes ;  although  it  may  have  been  pressed 
too  far,  and  relied  upon  too  much,  in  determining  the  re- 
sponsibility of  a  principal  for  the  acts  of  an  agent.  No 
agent  has  authority  to  be  in  all  respects,  and  for  all  pur- 
poses, an  alter  ego  of  his  principal,  binding  him  by  what- 
ever the  agent  may  do  in  reference  to  any  subject  whatever. 
On  the  other  hand  every  agency  must  be  so  far  general 
that  it  must  cover  not  merely  the  precise  thing  to  be  done, 
but  whatever  usually  and  rationally  belongs  to  the  doing 
of  it.  Of  late  years,  courts  seem  more  disposed  to  regard 
this  distinction,  and  the  rules  founded  upon  it,  as  alto- 
gether subordinate  to  that  principle,  which  may  be  called 
the  foundation  of  the  law  of  agencj^  namely,  that  a  prin- 
cipal is  responsible,  either  when  he  has  given  to  an  agent 

535,  75  N.  E.  738;  Dowden  v.  Cryder,  55  N.  J.  Law  329,  26  Atl. 
941.  A  general  agent  is  one  authorized  to  do  all  acts  connected 
with  the  particular  trade,  business  or  employment.  Columbus 
Show  Case  Co.  v.  Brinson,  128  Ga.  487,  57  S.  E.  871. 

eoFishbaugh  v.  Spunaugle,  118  Iowa,  337,  92  N.  W.  58;  Watts  v. 
Howard,  70  Minn.  122,  72  N.  W.  840;  Keith  v.  Herschberg  Optical 
Co.,  48  Ark.  138,  2  S.  W.  777.  The  fact  that  authority  of  an  agent 
is  limited  to  a  particular  business  does  not  make  his  agency  spe- 
cial; it  may  be  general  in  regard  to  that  business.  Cruzan  v. 
Smith,  41  Ind.  288. 

BiLobdell  V.  Baker,  1  Mete.  (Mass.)  193,  35  Am.  Dec.  358;  New- 
man V.  Lee,  87  App.  Div.  116,  84  N.  Y.  Supp.  106. 


140  THE  LAW  OF  AGENCY. 

sufficient  authority,  or,  when  he  justifies  a  party  dealing 
with  his  agent  in  believing  that  he  has  given  to  the  agent 
tliis  authority. ' '  ^^ 

In  the  case  of  a  general  agency  there  is,  of  course,  wider 
ground  for  inference  as  to  the  possession  of  incidental  or 
customary  powers  than  in  the  case  of  a  special  agent  em- 
ploj'ed  for  a  single  transaction ;  ^^  and,  so,  too,  implication 
of  authority  to  act  in  accordance  with  a  particular  usage 
might  arise  in  the  case  of  a  professional  agent,  such  as  a 
broker  or  factor,  where  it  would  not  arise  if  the  agency  were 
performed  by  a  non-professional  agent. ^*  Nevertheless,  any 
agency  carries  with  it  implied  power  to  do  what  is  usual 
and  necessary  to  the  execution  of  the  main  authority;  and 
where  contrary  limitations  are  imposed,  but  not  disclosed 
to  innocent  third  persons,  this  implied  power  becomes  the 
ineasure  of  the  scope  of  the  agent's  apparent  authority.^^ 

52  Parson  on  Contracts,  Vol.  I,  p.  43;  Mechanics'  Bank  v.  New 
York,  etc.,  Ry.,  13  N.  Y.  632.  While  acting  upon  the  matter  oT 
his  agency,  a  special  agent  binds  his  principal  as  effectually  ass 
can  a  general  agent.     Morton  v.  Scull,  23  Ark.  289. 

53  Blackwell  v.  Ketcham,  53  Ind.  184;  Gilbert  v.  Deshon,  107 
N.  Y.  324,  14  N.  E.  318;  Cleveland,  C.  C.  &  St.  L.  Ry.  v.  Moore,  170 
Ind.  328,  82  N.  E.  52.  A  special  agent  possesses  no  implied  author- 
ity beyond  what  is  indispensable  to  the  exercise  of  the  power  ex- 
pressly given,  and  must  keep  within  the  limits  of  his  commission. 
Bowles  V.  Rice,  107  Va.  51,  57  S.  B.  575. 

54  This  distinction  is  illustrated  by  three  English  cases:  A 
horse  dealer  authorized  to  sell  has  implied  authority  to  warrant 
where  a  warranty  on  the  part  of  horse  dealers  is  usual.  Howard 
V.  Sheward,  L.  R.  2  C.  P.  148.  But  a  person  not  a  horse  dealer 
would  not  have  such  implied  authority  where  authorized  to  sell 
privately.  Brady  v.  Todd,  9  C.  B.  592.  Implication  of  such  au- 
thority would  arise  where  a  person,  not  a  horse  dealer,  was  author- 
ized to  sell  at  a  fail-,  if  a  warranty  by  a  seller  at  a  fair  Is  the  usual 
course  of  business.     Brooks  v.  llassell,  49  L.  T.  569. 

5-- Walls  V.  Howard,  70  Minn.  122,  72  N.  W.  840;  Oberne  v 
Burke,  30  Neb.  581,  46  N.  W.  838;  Bently  v.  Doggett,  51  Wis.  2:>}. 


CONSTRUCTION    OF    AUTHORITY  141 

§  93.  Notice  of  limitations.  The  rules  to  be  stated 
berein  are  corollary  to  the  doctrine  laid  down  in  the  fore- 
going subdivision.  As  was  there  indicated,  third  persons 
can  not  bind  a  principal  by  acts  done  within  the  apparent 
scope  of  his  agent's  authority,  where  such  persons  knew, 
or  ought  to  have  known,  of  contrary  limitations.^^  Thus, 
where  the  authority  of  an  agent  is  required  by  law  to  be  in 
writing,  third  persons  dealing  with  him  are  conclusively 
presumed  to  know  that  he  acts  under  written  instructions, 
and  are  bound  absolutely  by  their  nature  and  scope.^^  So, 
if  a  third  person  knows,  or  has  reason  to  believe,  that  an 
agent's  powers  have  been  reduced  to  writing,  he  must,  at 
peril,  learn  the  tenor  of  the  instrument  under  which  the 
agent  acts.^^  So  generally,  if  a  third  person  has  knowledge, 
actual  or  constructive,  of  limitations  upon  the  power  of  an 
agent,  he  will  be  bound  thereby.^®     In  dealing  with  a  gen- 

8  N.  W.  155;  Mars  v.  Mars,  27  S.  C.  132,  3  S.  E.  60;  Authors  & 
Newspaper  Ass'n  v.  O'Gorman  Co.,  147  P"'ed.  616.  The  question  is 
not  what  authority  was  given,  but  what  authority  were  third  per- 
sons justified,  from  the  acts  of  the  principal,  in  believing  had  been 
given.    Aldrich  v.  Wilmarth,  3  S.  D.  525,  54  N.  W.  811. 

56  Ware  v.  Morgan,  67  Ala.  461,  Trustees,  etc.,  Ins.  Corp.  v.  Bow- 
ling, 2  Kan.  App.  770,  44  Pac.  42;  Marvin  v.  Universal  Ins.  Co., 
85  N.  Y.  278;  Rogers  v.  Halden,  142  Mass.  196.  7  N.  E.  768. 

BTPeabody  v.  Hoard,  46  111.  242;  Weise's  Appeal,  72  Pa.  St.  351; 
Nat.  Iron  Armor  Co.  v.  Bruner,  19  N.  J.  Eq.  331;  Reese  v.  Med- 
lock,  27  Tex.  120,  84  Am.  Dec.  611;  Frahm  vi.  Metcalf,  75  Neb.  241, 
106  N.  W.  227;  Davis  v.  Trachsler,  3  Cal.  App.  554,  86  Pac.  610. 
Purchasers  of  negotiable  paper  issued  by  an  agent,  the  nature  and 
extent  of  whose  authority  must  by  law  appear  upon  the  public 
records,  are  chargeable  with  notice  of  whatever  appears  upon 
those  records.    Lewis  v.  Bourbon  County  Com'rs,  12  Kan.  186. 

esQuinlan  v.  Insurance  Co.,  133  N.  Y.  356,  31  N.  E.  31;  Rawson 
V.  Curtis,  19  111.  456;  Finch  v.  Causey,  107  Va.  124,  57  S.  E.  562; 
Luckie  v.  Johnston,  89  Ga.  321,  15  S.  E.  459;  Chaison  v.  Beau- 
champ,  12  Tex.  Ciy.  App.  109,  34  S.  W.  303. 

"Lucas  v.  Rader,  29  Ind.  App.  287,  64  N.  E.  488;    Hodge  v. 


1-12  THE  LAW  OF  AGExNCY. 

eral  agent,  third  persons,  in  the  absence  of  circumstances 
sufficient  to  put  a  reasonable  man  on  his  guard,  may  assume 
that  the  agent  possesses  the  power  ordinarily  conferred 
upon  agents  of  like  character;  and  no  duty  is  upon  them 
to  make  special  inquiry  as  to  limitations  upon  his  author- 
ity.^" But  on  the  other  hand,  it  is  frequently  stated  as  the 
rule  that  one  who  deals  with  a  special  agent  deals  at  peril, 
and  must  acquaint  himself  with  the  exact  scope  of  the 
agent's  authority.®^  Here  again,  the  rule  can  be  literally 
accepted  only  if  a  limited  meaning  be  given  to  the  term 
special  agent ;  for  it  probably  would  not  apply  in  the  case 
of  a   recognized  professional   agent,   such   as   a  broker.''- 

Combs,  66  U.  S.  192;  Jonathan  Mills  Mfg,  Co.  v.  Whitehurt,  19  C. 
C.  A.  130,  72  Fed.  496;  Perry  v.  Smith.,  29  N.  J.  Law,  74;  Rail  v 
City  Nat.  Bank,  3  Tex.  Civ.  App.  557.  22  G.  W.  865;  Padley  v. 
Neill,  134  Mo.  364,  35  S.  W.  997;  Gilbert  v.  Deshon,  107  N.  V.  324. 
14  N.  E.  318;  Fritz  v.  Chicago  Grain  Co.,  136  Iowa,  699,  114  N.  W. 
193.  The  question  is  usually  one  of  fact  for  the  jury.  Glen  v. 
Savage,  14  Ore.  567,  13  Pac.  442;  Daylight  Burner  v.  Odlin,  51  N 
H.  56,  12  Am.  Rep.  45. 

00  Saxonia  Mining,  etc.,  Co.  v.  Cook.  7  Colo.  569,  4  Pac.  1111; 
Banks  v.  Everest,  35  Kan.  687,  12  Pac.  141;  All  is  v.  Voigt,  90 
Mich.  125,  51.  N.  W.  190;  Harrison  v.  Kansas  City,  etc..  Ry.,  5' 
Mo.  App.  332;  Grand  Pacific  Hotel  Co.  v.  Pinkerton,  217  111.  01 
75  N.  E.  427.  Where  a  firm  doing  business  in  one  place  takes 
charge,  under  a  chattel  mortgage,  of  the  business  of  an  insolvent 
debtor  in  another  place,  ani  leaves  him  to  carry  it  on  in  their 
name,  it  is  not  negligence  for  others  to  sell  to  the  agent  without 
Inquiring  as  to  the  extent  of  his  authority.  Banner  Tobacco  Co. 
v.  .Jenlson,  48  Mich.  459,  12  N.  W.  655. 

81  Wells  v.  Michigan  Mut.  Life  Ins.  Co.,  41  W.  Va.  131,  23  S.  E. 
527;  Hayes  v.  Campbell,  63  Cal.  143;  First  Nat.  Bank  v.  Hall,  8 
Mont.  341,  20  Pac.  638;  Galveston,  etc.,  Ry.  Co.  v.  Allen,  42  Tex. 
Civ.  App.  576.  94  S.  W.  417;  Reid  v.  Alaska  Packing  Co.,  47  Ore. 
215.  83  Pac.  139. 

"2  Lobdell  v.  Baker.  1  Mctc.  (Mass.)  193,  35  Am.  Dec.  358.  An 
agfnt  to  soil  has  authority  to  warrant,  if  warranty  be  customary, 
and  private  rostriclions  upon  tlie  customary  power  can  not,  where 


CONSTRUCTION    OP   AUTHORITY.  143 

Usually,  however,  where  an  agent  is  employed  to  do  a  sin- 
gle act,  the  person  with  whom  he  deals  must  at  peril  ascer- 
tain the  terms  of  the  agent's  authority.®'  Thus,  where  an 
agent  was  authorized  to  buy  cotton  of  a  designated  person 
at  a  certain  place,  he  was  held  not  to  have  apparent  au- 
thority to  buy  of  a  different  person  at  a  different  place."* 
Here,  clearly,  the  principal  has  done  nothing  to  create  the 
appearance  of  such  authority.  But  if  the  agent  had  pur- 
chased the  cotton  of  the  proper  person,  it  may  be  doubted 
whether  such  person  would  have  been  bound  at  peril  to 
ascertain  the  existence  of  limitations  upon  powers  which 
otherwise  would  have  been  implied  as  incidental  to  the  au- 
thority given. ®^ 

§  94.'  Summary.  In  closing  this  discussion,  it  may  be 
well  to  again  remind  the  student  that  the  law  indulges  no 
presumption  as  to  the  existence  in  one  man  of  authority 
to  represent  another,  except  such  as  legitimately  arises  from 
Llie  other's  act  or  conduct ;  and  that  in  order  to  bind  a  man, 
by  virtue  of  dealings  with  his  agent,  authority  of  the  agent, 
in  all  particulars,  must  be  traced  back  to  its  source, — the 
assenting  mind  of  the  principal.  The  burden  is  upon  him 
who  seeks  to  bind  the  principal  to  establish  the  existence 

unknown  to  a  purchaser,  affect  his  rights.  Hayner  v.  Churchill, 
29  Mo.  App.  676. 

C3  Johnson  v.  Alabama  Gas,  etc.,  Co.,  90  Ala.  505,  8  South.  101; 
Siebold  v.  Davis.  G7  Iowa,  500,  25  N.  W.  778;  Bohart  v.  Oberne, 
36  Kan.  284,  13  Pac.  388.  A  person  buying  real  estate  of  an  agent 
must  at  his  peril,  ascertain  the  extent  of  the  agent's  authority. 
Milne  v.  Kleb,  44  N.  J.  Eq.  378,  14  Atl.  646. 

6*  Robinson  Mercantile  Co.  v.  Thompson,  74  Miss.  847,  21  South. 
794. 

88  A  special  agent  who  acts  within  his  apparent  authority  binds 
his  principal.  Howell  v.  Graff,  25  Neb.  130.  41  N.  W.  142.  Sae 
Wheeler  v.  McGuire,  86  Ala.  398,  5  South.  190. 


144  THE  LAW  OF  AGENCY. 

of  the  agenc}",  and  its  nature  and  scope.  The  existence  of 
an  agency  may  be  established  by  proof  of  express  or  implied 
appointment ;  and  having  been  established,  the  law  will  in- 
fer authority  in  the  agent  to  exercise  medium  powers  and 
to  act  in  accordance  with  known  usage.  This  inference 
can  not  arise  in  face  of  express  restrictions  to  the  contrary ; 
but  it  will  be  indulged  in  favor  of  those  who  did  not  know 
of  such  restrictions,  or,  who,  in  view  of  the  character  of  the 
agency,  were  not  bound  to  ascertain  their  existence. 


CHAPTER  IX. 

SCOPE  OF  PARTICULAR  AGENCIES. 

§  95.  In  general. 

96.  Agent  to  sell. 

(a)  Personalty. 

(b)  Realty. 

97.  Agent  to  purchase. 

98.  Agent  to  receive  payment. 

99.  Agent  to  execute  commercial  paper. 

100.  Agent  to  manage  business, 

101.  Bank  cashier. 

102.  Factor. 

103.  Broker. 

104.  Auctioneer. 

105.  Attorney-at-law. 

§  95,  In  general.  As  we  have  seen  in  the  preceding 
chapter,  unless  the  principal  has  indicated  a  contrary  in- 
tention, an  agent  is  held  to  have  implied  authority  to  do 
what  is  reasonably  necessary  to  the  accomplishment  of  the 
purpose  of  his  agency,  and  to  act  in  accordance  with  the 
usages  and  customs  of  the  business  for  which  he  was  en- 
gaged.^ Furthermore,  though  the  existence  of  such  im- 
plied power  is  precluded  by  reason  of  contrary  limitations, 
yet,  as  against  third  persons,  who  had  neither  actual  or 
constructive  notice  of  them,  the  agent  is  held  to  have  ap- 
parent authority  coextensive  in  scope  with  the  real  author- 
ity which  he  would  have  had,  in  the  absence  of  such  un- 
disclosed limitations ;  and  within  the  scope  of  this  appar- 
ent authority  he  may  bind  the  principal.^     So,  we  saw  at 

1  Ante  §  89. 

2  Ante  §  91. 

10 


146  THE  LAW  OP  AGENCY. 

the  very  outset  of  this  treatment  of  our  subject,  that  there 
were  a  number  of  well  established  forms  of  agency  to  which 
the  law  gave  recognition ;  and  that  where  the  duties  of  a 
particular  agent  are  well  defined  by  custom,  the  law  as- 
sumes, in  the  absence  of  express  restrictions,  that  the  au- 
thority of  such  an  agent,  in  any  particular  case,  extends  to 
the  performance  of  those  functions  for  which  he  ordinarily 
is  employed.^  This  chapter  shall  be  devoted  to  examples 
of  practical  application  of  the  doctrines  in  question. 

§  96.  Agent  to  sell,  (a)  Personalty.  Authority  to  sell 
personal  property  may  be  expressly  given  or  may  be  im- 
plied from  acts  or  conduct.*  Implication  of  such  authority 
does  not  arise  from  mere  possession  of  property ;  ^  but  in- 
trusting another  with  possession,  under  circumstances  suf- 
ficient to  create  a  clear  appearance  of  a  right  to  sell,  may 
estop  the  real  owner  to  assert  his  title,^  as  where  he  sends 
his  goods  to  an  auction  room ;  "^  or  invests  the  person,  in- 
trusted with  possession,  with  documentary  evidence  of  title."* 
An  agent  authorized  to  sell,  has  implied  power  to  fix  a  rea- 
sonable price,  and  to  agree  upon  usual  terms  of  sale ;  ^  but 

•Ante  §  11. 

*  Ante  §  50. 

sSaltus  V.  Everett,  20  Wend.  (N.  Y.)  267,  32  Am.  Dec.  541; 
Levi  V.  Booth,  58  Md.  305,  42  Am.  Rep.  332;  Oilman  Linseed  0  \ 
Co.  V.  Norton,  89  Iowa,  434,  56  N.  W.  6G3. 

0  Barnard  v.  Campbell,  55  N.  Y.  45G,  14  Am.  Rep.  289;  Smith  v. 
Clews,  105  N.  Y.  283.  11  N.  E.  632. 

7  Pickering  v.  Bush,  15  East,  38;  Nixon  v.  Brown,  57  N.  H.  31; 
Hoath  V.  Stoddard,  91  Me.  499.  40  Atl.  547. 

8  McNeill  V.  Tenth  Nat.  Bank,  46  N.  Y.  325,  7  Am.  Rep.  341; 
Walker  v.  Railway  Co.,  47  Mich.  338,  11  N.  W.  187. 

0  Putnam  v.  French,  53  Vt.  402,  38  Am.  Rep.  682;  Tollorton  & 
Warneld  Co.  v.  Gilruth.  21  S.  D.  320,  112  N.  W.  842.  Authority  to 
sell  docs  not  imply  power  to  compromise  differences  as  to  the  goods 


? 


SCOPE  OP  PARTICULAR  AGENCIES.  147 

not  to  sell  on  credit,  unless  in  pursuance  of  a  well  estab- 
lished usage;  ^°  nor  to  exchange  or  barter;  ^^  nor  to  pledge 
or  mortgage.^-  An  agent  to  sell,  -who  is  intrusted  with  pos- 
session of  the  goods,  has  implied  power  to  receive  pay- 
ment; ^^  but  an  agent  authorized  merely  to  solicit  orders 
has  no  such  power.^*  So,  if  the  sale  is  one  usually  accom- 
panied by  a  warranty,  the  agent  will  have  implied  power 
to  make  such  customary  warranty/"  In  any  of  the  cases 
cited,  contrary  limitations  upon  the  implied  power  of  an 
agent  will  not  affect  third  persons  who  had  no  actual  or 
constructive  notice  of  them.^^ 

(b)  Realty.  Since  the  sale  of  real  estate  can  be  ef- 
fected only  by  the  execution  of  a  deed,  power  to  sell  realty 

being  of  the  represented  standard.  Scarritt-Comstock  Furniture 
Co.  V.  Hudpeth,  19  Old.  429,  91  Pac.  843. 

10  Payne  v.  Potter,  9  Iowa,  549;  Graul  v.  Strutzel,  53  Iowa,  715, 
6  N.  W.  119;  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am. 
Rep.  45;  Burks  v.  Hubbard,  69  Ala.  379. 

iiTrudo  V.  Anderson,  10  Mich.  357,  81  Am.  Dec.  795;  Taylor  v. 
Starkley,  59  N.  H.  142. 

12  Voss  V.  Robertson,  46  Ala.  483;  Switzer  v.  Wilvers,  24  Kan. 
384,  36  Am.  Rep.  259. 

13  Butler  V.  Dorma.n,  68  Mo.  298,  30  Am.  Rep.  795;  Higgins  v. 
Moore,  34  N.  Y.  417;  Goodenow  v.  Tyler,  7  Mass.  36,  5  Am.  Dec.  22. 

14  Janney  v.  Boyd,  30  Minn.  319,  15  N.  W.  308;  Clark  v.  Smith, 
88  111.  298;  Law  v.  Stokes,  32  N.  J.  Law,  249,  90  Am.  Dec.  655; 
Brown  V.  Lalley,  79  Minn.  38,  81  N.  W.  538.  Agency  to  sell  does 
not  necessarily  carry  with  it  power  to  collect.  Toole  v.  Crews,  3 
Ga.  App.  238,  59  S.  E.  727. 

ispickert  v.  Marston,  68  Wis.  465,  32  N.  W.  550;  Talmadge  v. 
Bierhause,  103  Ind.  270,  2  N.  E.  716;  McAlpine  v.  Cassidy,  17  Tex. 
449;  Randall  v.  Kehlor,  60  Me.  37,  11  Am.  Rep.  169;  Second  Nat. 
Bank  v.  Adams,  29  Ky.  Law  Rep.  566,  93  S.  W.  671.  The  question 
as  to  what  is  usual  in  such  a  case  is  ordinarily  one  for  the  jury. 
Herring  v.  Skagg,  62  Ala.  180,  34  Am.  Rep.  4. 

16  Putnam  v.  French,  53  Vt.  402,  38  Am.  Rep.   682;    Luckie  v. 


1-lS  THE  LAW  OF  AGENCY. 

must  be  given  under  seal ;  ^'^  though,  as  we  have  seen,  a  deed 
executed  by  an  agent  under  parol  authority  may  take  ef- 
fect as  a  contract  to  convey.^*  An  agent  authorized  merely 
to  enter  into  a  contract  of  sale  has  no  implied  power  to  re- 
ceive the  purchase  price ;  ^^  and,  though  authorized  to  exe- 
cute a  conveyance,  would  have  implied  power  to  receive 
only  so  much  of  the  purchase  price  as  was  payable  at  the 
time  of  conveyance.^"  Power  to  sell  land  does  not  imply 
authority  to  sell  on  credit  ;^^  or  to  mortgage  ;^^  although 
it  would  seem  to  carry  with  it  implied  power  to  insert  in 
the  conveyance  usual  covenants  of  general  warranty."' 
Any  implication  of  authority  must  arise  from  a  proper  con- 
struction of  the  written  power  under  which  the  agent  acts, 
and  as  his  instructions  are  known  to  be  in  writing,  there 
would  be  practically  no  occasion  for  operation  of  the  doc- 
trine of  apparent  authority. 

§  97.  Agent  to  purchase.  Authority  to  buy  does  not 
imply  power  to  buy  on  credit,^*  unless  the  agent  has  not 

Johnston,  89  Ga.  321,  15  S.  E.  459;  Trainer  v.  Morison,  78  Me. 
160,  3  All.  185. 

17  Ante  §  46. 

18  Id. 

10  Mann  v.  Robinson,  19  W.  Va.  49,  42  Am.  Rep.  771;  Alexander 
V.  Jones,  64  Iowa,  207,  19  N.  W.  913. 

20  Johnson  v.  McCnider,  15  Mo.  365;  Carson  v.  Smith,  5  Minn. 
78;  Dyer  v.  Duffy,  :!!t  W.  Va.  148,  19  S.  E.  540;  Johnson  v.  Craig. 
21  Ark.  533. 

21  Lumpkin  v.  Wilson,  5  Heisk.  (Tenn.)  555;  "Winders  v.  Hill, 
141  N.  C.  694,  54  S.  E.  440.  An  agent  to  sell  land  can  not  bind  his 
principal  by  acceptance  of  a  check  in  part  payment.  Ormsby  v. 
Graham,  123  Iowa,  202,  98  N.  W.  724. 

22jc'ffrey  v.  Ilursh,  49  Mich.  31;  Wood  v.  Goodridge,  6  Cush. 
(Mass.)  117,  52  Am.  Dec.  771;  Ferry  v.  Lalble,  31  N.  J.  Eq.  566. 

23  Peters  v.  Farnsworth,  15  Vt.  155,  40  Am.  Dec.  071;  LeRoy  v 
Beard.  8  How.  (U.  S.)  451;  Rackman  v.  Charlestown,  42  N.  H.  125. 

2*  Rerry  v.  Barnes,  23  Ark.  411. 


SCOPE  OF  PARTICULAR  AGENCIES.  149 

been  supplied  with  funds, -^  or  it  is  an  established  custom 
cf  the  trade  to  buy  on  credit.^*  Neither  may  he,  as  a  rule, 
execute  negotiable  paper  in  payment.^'^  An  agent  to  buy 
has  implied  power  to  fix  the  price  and  terms  of  sale,  pro- 
vided they  are  reasonable  and  usual.^^  But  he  may  not 
buy  goods  of  a  different  kind  or  amount  than  authorized ;  ^^ 
pay  a  higher  price, ^"^  or  buy  from  persons  other  than  those 
Avith  whom  he  is  directed  to  dcal.^'  Where,  how^ever, 
the  agency  was  of  such  a  character  as  to  create  an  appear- 
ance of  authority  to  exercise  discretion  in  these  particulars, 
the  principal  will  be  bound  by  acts  within  the  apoarent 
scope  of  the  agent's  authority .^^ 

§  98.  Agent  to  receive  payment.  Authority  to  collect 
does  not  imply  power  to  receive  payment  in  anything  but 

25  Spra&ue  v.  Gillett,  9  Mete.  (Mass.)  91.  An  agent,  author- 
ized to  buy  goods,  where  no  funds  are  advanced  him,  has  implied 
power  to  buy  on  credit.  Swindell  v.  Latham,  145  N.  C.  144,  58 
S.  n  1010. 

26  Jaques  v.  Todd,  3  Wend.  (N.  Y.)  83;  Temple  v.  Pomroy,  4 
Gray  (Mass.),  128;  Wheeler  v.  McGuire,  86  Ala.  398,  5  South.  190; 
Komorowski  v.  Krumdick,  56  Wis.  23,  13  N.  W.  881. 

27  Taber  v.  Cannon,  8  Mete.  (Mass.)  456;  Webber  v.  Williams 
College,  23  Pick.  (Mass.)  302;  Bickford  v.  Menier,  107  N.  Y.  490. 
14  N.  E.  438;  Post  §  99. 

28  Owen  V.  Brockschmidt.  54  Mo.  285;  Wishard  v.  McNeill,  85 
rowa,  474,  52  N.  W.  474;  Bryant  v.  Moore,  26  Me.  84,  45  Am.  Dec. 
96. 

»Davies  v.  Lyon,  36  Minn.  427,  31  N.  W.  688;  Olyphant  V.  Mc- 
Nalr,  41  Barb.  (N.  Y.)  446. 

«o  Bryant  v.  Moore,  26  Me.  84,  45  Am.  Dec.  96. 

•iPeckham  v.  Lyon,  4  McLean  (U.  S.)  45;  Robinson  Mercantile 
Co.  V.  Thompson,  74  Miss.  847,  21  South.  794;  Eckart  v.  Roehm. 
43  Minn.  27,  45  N.  W.  443. 

»»  Butler  V.  Maples,  9  Wall.  (U.  S.)  766;  Hill  v.  Miller,  76  N.  Y. 
32;  Hubbard  v.  Tenbrook,  124  Pa.  St.  291,  16  Atl.  817;  Liddell  v. 
Sahline,  55  Ark.  627,  17  S.  W.  705. 


150  THE  LAW  OF  AGENCY. 

money ;  ^  and  if  authority  to  receive  paper  be  given,  power 
i?  not  implied  to  indorse  the  same.^*  An  agent  may  receive 
part  pa3"2nent ;  ^^  but  has  no  implied  authority  to  compro- 
mise a  debt,  or  extend  the  time  of  its  payment.^^  Authority 
to  receive  payment  will  be  implied  where  it  is  a  necessary 
incident  to  the  business  for  which  an  agent  is  engaged ;  ^" 
but  authorty  to  collect  a  note  is  not  implied  from  the  fact 
of  its  possession ;  ^^  nor  will  an  inference  of  power  to  collect 
money,  due  under  a  contract,  arise  from  the  fact  that  the 
agent  negotiated  the  same.^^  "Where,  however,  an  agent 
who  negotiated  the  making  of  a  loan  was  permitted  to  keep 
possession  of  the  note  and  mortgage,  after  the  same  was 
due,  and  this  was  known  to  the  debtor,  the  creditor  was 
held  to  be  estopped  to  deny  the  agent's  authority  to  receive 

83  Robinson  v.  Anderson,  106  Ind.  152,  6  N.  E.  12;  Padfield  v. 
Green,  85  111.  529;  Hurley  v.  Watson,  68  Mich.  531,  36  N.  W.  726; 
"Wees  V.  Page,  47  Wash.  213,  91  Pac.  766.  An  agent  to  sell  land 
can  not  bind  his  principal  by  acceptance  of  a  check  in  part  pay- 
ment.    Ormsby  v.  Graham,  123  Iowa,  202,  98  N.  W.  724. 

34  Jackson  v.  Bank,  92  Tenn.  154,  20  S.  W.  820;  National  Fence 
Mach.  Co.  V.  Hlghleyman,  71  Kan.  347,  80  Pac.  568;  Hamilton 
Nat.  Bank  v.  Nye,  37  Ind.  App.  464,  77  N.  E.  295. 

36  Whelan  v.  Reilly,  61  Mo.  565. 

30  Herring  v.  Hottendorf,  74  N.  C.  588;  McHany  v.  Schenck,  88 
111.  357;  John  Gund  Brewing  Co.  v.  Peterson,  130  Iowa,  301,  106 
N/W.  741;  Ritch  v.  Smith,  82  N.  Y.  627. 

^/sTQuinn  v.  Dresbach,  75  Cal.  159,  16  Pac.  762;  Ladd  v.  Aetna 
Indemnity  Co.,  128  Fed.  298.  Authority  to  sell  goods  and  collect 
the  price  does  not  imply  power  to  open  a  bank  account  for  the 
principal  nor  to  borrow  money.  Case  v.  Hammond  Packing  Co., 
105  Mo.  App.  168,  79  S.  W.  732. 

38  Dou])]eday  v.  Kress,  50  N.  Y.  410,  10  Am.  Rep.  502.  Author- 
ity to  collect  interest  on  a  note  Implies  no  power  to  collect  the 
principal.     Iligky  v.  Dennis,  40  Tex.  Civ.  App.  133.  88  S.  W.  400. 

88  Thompson  v.  Elliott,  73  111.  221;  Ortmeier  v.  Ivory,  208  111. 
577,  70  N.  E.  665. 


SCOPE  OF  PARTICULAR  AGENCIES.  151 

payment.*"  A  general  authority  to  collect  will  imply 
power  to  bring  suit  and  engage  counsel/^  or  to  employ  a 
subagent  at  the  place  of  payment.*^ 

§  99.  Agent  to  execute  commercial  paper.  Authority 
to  execute  or  indorse  commercial  paper  is  seldom  implied ;  *^ 
and  when  expressly  given,  is  strictly  construed.**  As  was 
said  in  an  early  Massachusetts  case :  ' '  The  power  of  binding 
by  promissory  negotiable  notes  can  be  conferred  only  by 
direct  authority  of  the  party  to  be  bound,  with  the  single 
exception  where,  by  necessary  implication,  the  duties  to  be 
performed  can  not  be  discharged  Mathout  the  exercise  of 
such  power. "*°  Thus,  an  agent  authorized  to  "accom- 
plish a  complete  adjustment"  of  his  principal's  affairs  in  a 
particular  state  was  held  not  to  have  power  to  execute  a 
promissory  note ;  *^  nor  will  authority  to  sign  the  princi- 
pal's  name  in  the  general  transaction  of  business  include 
power  to  sign  a  promissory  note.*"  So,  authority  to  pay 
for  goods,  does  not  include  power  to  give  the  principal's 
note  in  payment,  or  to  accept  a  bill  of  exchange  drawn  for 

*o  Crane  v.  Gruenewald,  120  N.  Y.  274,  24  N.  B.  456;  Bautz  v. 
Adams.  131  Wis.  152,  111  N.  W.  69. 

41  Davis  V.  Waterman,  10  Vt.  526,  33  Am.  Dec.  216;  Scott  v.  El- 
mendorf,  12  Johns.  (N.  Y.)  317;  Merricli  v.  Wagner,  44  111.  266; 
Moore  v.  Hall,  48  Mich.  145,  11  N.  W.  844;  Ryan  v.  Tudor,  31  Kan. 
366,  2  Pac.  797. 

42  Dorchester  &  Milton  Bank  v.  Bank,  1  Cush.  (Mass.)  177; 
Ante  §  36. 

43  Webber  v.  Williams  College.  23  Pick.  (Mass.)  302;  Exchange 
Bank  v.  Thower,  118  Ga.  433,  45  S.  E.  316. 

44  Tate  V.  Evans,  7  Mo.  419;  Batty  v.  Carswell,  2  Johns.  (N.  Y.) 
48;  King  v.  Sparks,  77  Ga.  285,  1  S.  E.  266. 

45  Paige  V.  Stone,  10  Mete.   (Mass.)  160,  43  Am.  Dec.  420. 
4«Rossiter  v.  Rossiter,  8  Wend.   (N.  Y.)  494,  24  Am.  Dec.  62. 
«  Brantley  v.  Southern  Life  Ins.  Co.,  53  Ala.  554. 


152  THE  LAW  OF  AGENCY. 

the  amount.*^  "Where  expressly  given,  the  agent  must  keep 
strictly  within  the  limit  of  his  power ;  *'  and  parties  deal- 
ing with  him  must  ascertain  his  authority.^"  Thus  power 
to  execute  a  note  for  a  given  purpose  does  not  include 
power  to  execute  for  a  different  purpose,^^  or  for  other  than 
the  authorized  amount.^^  So,  authority  to  make  a  note 
does  not  include  power  to  give  a  renewal ;  ^^  nor  to  make 
the  note  payable  at  a  different  date  than  that  authorized.^* 
Power  to  execute  or  indorse  commercial  paper  will  be  im- 
plied only  when  a  necessary  incident  to  the  business  for 
which  the  agent  was  engaged.''* 

§  100.  Agent  to  manage  business.  The  doctrine  of  im- 
plied and  apparent  authority,  naturally,  finds  wide  appli- 
cation in  the  case  of  an  agent  employed  to  manage  generally 

48  Taber  v.  Cannon,  8  Mete.  (Mass.)  456;  Morris  v.  Bowen,  52 
N.  H.  416. 

■49  Nixon  V.  Palmer,  8  N.  Y.  398;  Gulick  v.  Grover,  33  N.  J.  Law, 
463,  97  Am.  Dec.  728. 

60  Blackwell  v.  Ketcham,  53  Ind.  184;  Craighead  v.  Peterson, 
72  N.  Y.  279.  But  a  principal  who  delivers  to  an  agent  negotiable 
paper  signed  in  blank  will  be  liable  to  innocent  third  persons  not- 
withstanding that  the  agent  violated  instructions  in  filling  out  the 
paper.  Davis  v.  Lee,  26  Miss.  505;  Snyder  v.  Van  Doran,  46  Wisi. 
610;  Bank  v.  Neal,  22  How.  (U.  S.)  107. 

SI  Nixon  V.  Palmer,  8  N.  Y.  398;  Gulick  v.  Grover,  33  N.  J.  Law, 
46a,  97  Am.  Dec.  728. 

'•2  Blackwell  v.  Ketcham,  53  Ind.  184;  King  v.  Sparks,  77  Ga. 
285,  1  S.  E.  260. 

08  Ward  V.  Bank,  7  T.  B.  Mon.  (Ky.)  93. 

84  Batty  V.  Carswell,  2  Johns.  (N.  Y.)  48;  Tate  v.  Eva,ns,  7  Mo. 
419;  New  York  Iron  Mine  Co.  v.  Bank,  44  Mich.  344,  6  N.  W.  823. 

»5  Merchants'  Banls  v.  Bank,  1  Ga.  418,  44  Am.  Dec.  665;  Man- 
hattan Liquor  Co.  v.  Mangus.  43  Tex.  Civ.  App.  463,  94  S.  W.  1117. 
Power  to  oxfcute  negotiable  Instruments  Is  Implied  as  an  incident 
to  an  agency  only  when  I  he  purpose  of  the  same  can  not  other- 
wise 1)0  acfomi)llKlKHl.  Temple  v.  Pomroy.  4  Gray  (Mass.),  128; 
Jackson  v.  Bank,  92  Tenn.  154,  20  S.  W.  802. 


SCOPE  OF  PARTICULAR  AGENCIES.  153 

some  business  of  his  principal.  In  the  absence  of  express 
restrictions,  such  an  agent  has  implied  power  to  do  what- 
ever is  reasonably  necessary  to  carry  on  the  business  in  the 
usual  and  customary  manner ;  '*  and  contrary  limitations, 
unless  disclosed,  will  not  be  binding  on  third  persons  who 
deal  with  the  agent  in  reliance  upon  his  apparent  author- 
ity.^^ Thus,  the  manager  of  a  store,  hotel,  farm  or  mine  has 
implied  authority  to  buy  on  credit  whatever  goods  are 
needed  in  the  conduct  of  the  business ;  '*'  or  to  make  what- 
ever contracts  are  necessary  thereto.^®  He  has  implied 
power  to  sell  whatever  is  necessary  or  usual  to  sell  in  the 
conduct  of  the  business ;  ^^  but  not  to  sell  the  business."^ 
laortgage  property,®^  or  engaged  in  a  different  business."^ 

66  German  Fire  Ins.  Co.  v.  Grunert,  112  111.  68,  1  N.  E.  113; 
Roche  V.  Pennington,  90  Wis.  107,  62  N.  W.  946;  King  v.  Seaboard, 
etc.,  Ry.  Co.,  140  N.  C.  433,  53  S.  E.  237.  Where  it  is  necessary  to 
the  operation  of  a  mine  that  provisions  be  furnished  to  the  keep- 
er of  a  boarding  house,  where  miners  live,  the  superintendent 
may  bind  the  operator  for  such  supplies.  Heald  v.  Hendy,  89  Cal. 
632,  27  Pac.  67. 

67  Harrison  v.  Missouri  Pac.  Ry.,  74  Mo.  364,  41  Am.  Rep.  318. 
88  Banner  Tobacco  Co.  v.  Jenison,  48  Mich.  459;   Cummings  v. 

Sargent,  9  Mete.  (Mass.)  172;  Taylor  v.  Labeaume,  17  Mo.  338. 
The  burden  is  on  plaintiff  to  show  that  the  goods  were  such  as  the 
nature  of  the  business  justified  purchasing.  Wallis  Toliacco  Co. 
V.  Jackson,  99  Ala.  460,  13  South.  120. 

59  Heald  v.  Hendy,  89  Cal.  632,  27  Pac.  67;  King  v.  Seaboard, 
etc.,  Ry.,  140  N.  C..433,  53  S.  E.  237.  The  manager  of  a  hotel  has 
implied  authority  to  bind  his  principal  by  contract  for  advertis- 
ing the  hotel..    Calhoon  v.  Buhre,  75  N.  J.  Law,  439,  67  Atl.  10G8. 

60  Scudder  v.  Anderson,  54  Mich.  122,  19  N.  W.  775;  Johnson 
V.  Investment  Co.,  46  Neb.  480.  64  N.  W.  1100. 

61  Holbrook  v.  Oberne.  56  Iowa,  324,  9  N.  W.  291;  Vescelius  v. 
Martin,  11  Colo.  391,  18  Pac.  338. 

62  Despatch  Line  v.  Manufacturing  Co..  12  N.  H.  205,  37  Am. 
Dec.  203. 

«3  Campbell  v.  Hastings,  29  Ark.  512;  Hazeltine  v.  Miller,  44 
Me.  177. 


154  THE  LAW  OF  AGENCY. 

' '  If, ' '  as  was  said  in  a  New  York  case,  ' '  tlie  transaction  of 
business  absolutely  required  the  exercise  of  power  to  bor- 
row money  in  order  to  carry  it  on,  then  that  power  was 
impliedly  conferred  as  an  incident  to  the  employment. ' '  '* 

§  101.  Bank  cashier.  The  scope  of  a  bank  cashier's  im- 
plied authority,  and  hence  of  his  apparent  authority,  is 
large.  "Ordinarily,  the  cashier,  being  the  ostensible  ex- 
ecutive officer  of  a  bank,  is  presumed  to  have,  in  the  ab- 
sence of  positive  restrictions,  all  the  powers  necessary  for 
such  an  officer  in  the  transaction  of  the  legitimate  business 
of  banking. "  ^^  "\\'ithin  the  scope  of  authority  usually  con- 
ferred upon  cashiers,  he  may  bind  the  bank,  notwithstand- 
ing unusual  restrictions,  in  dealings  with  third  persons 
who  relied  upon  his  apparent  authority.®^  Thus,  if  a 
cashier,  contrary  to  instructions,  certifies  a  check,  the  bank 
is  liable  thereon  to  the  person  to  whom  it  was  issued,  pro- 
vided such  person  was  without  notice  that  the  cashier  was 
forbidden  to  certify.®^  By  virtue  of  his  position,  a  cashier 
has  implied  power  to  collect  debts  due  the  bank ;  ^^  to  draw 
checks  upon  funds  of  the  bank  deposited  elsewhere ;  ®^  t< 
buy  and  sell  bills  of  exchange;  '°  to  indorse  negotiable  pa 

eiBickford  v.  Menier,  107  N.  Y.  490,  14  N.  E.  438.  But  the  in 
ference  will  not  arise  unless  the  power  to  borrow  is  practically 
indispensable  to  execution  of  the  agency. 

0^  West  St.  Louis  Sav.  Bank  v.  Bank,  95  U.  S.  557. 

«e  Case  v.  Citizens'  Bank,  100  U.  S.  446. 

«7  Merchants'  Nat.  Bank  v.  Bank,  10  Wall.  (U.  S.)  604;  Cooke  v 
Bank.  r,2  N.  Y.  96,  11  Am.  Rep.  667. 

es  Badger  v.  Bank.  26  Me.  428. 

•8  Merchants'  Nat.  Bank  v.  Ban):,  10  Wall.  (U.  S.)  604. 

TOFleckner  v.  Bank,  8  Wheat  (U.  S.),  338. 


SCOPE   OF    PARTICULAR   AGENCIES.  155 

per;  '^  and  generally,  to  perform  such  functions  as  are  usual 
•ind  customary  in  the  conduct  of  banking  business.''^ 

§  102.  Factor.  A  factor,  as  we  have  seen,  is  an  agent 
to  sell  goods  of  which,  ordinarily,  he  has  possession.  When 
he  guarantees  payment,  he  is  called  a  del  credere  agent.''^ 
In  the  absence  of  contrary  restrictions,  a  factor  has  implied 
authority  to  sell  in  his  own  name,"*  to  fix  prices,''^  give 
credit,'^^  and  to  receive  payment;"'  so  in  pursuance  of  es- 
tablished usage,  he  may  make  warranties. '^^  A  factor  has 
neither  implied  nor  apparent  authority  to  pledge  the  prin- 
cipal 's  goods  for  his  own  debt ;  ^^  though  he  may  pledge 
them  for  payment  of  charges  against  the  goods  themselves, 
as  for  duties  levied  upon  them.^°     Neither  has  a  factor  im- 

'  City  Bank  v.  Perkins,  29  N.  Y.  554,  86  Am.  Dec.  332. 

'2  West  St.  Louis  Sav.  Bank  v.  Bank,  95  U.  S.  557;  Case  v.  Bank, 
100  U.  S.  446;    Clarke  Nat.  Bank  v.  Bank,  52  Barb.   (N.  Y.)   592. 

T«  i^.nte  §  8. 

74  Graham  v.  Duckwall,  8  Bush.  (KJ^)  12. 

■"•  Smart  v.  Sanders,  3  C.  B.  (Eng.)  380;  Putnam  v.  French,  53 
Vt  402. 

76  Van  Alen  v.  Vanderpool,  6  Johns.  (N.  Y.)  69;  Goodenow  v. 
Tyler,  7  Mass.  36,  5  Am.  Dec.  22;  Burton  v.  Goodspeed,  69  111 
238;  Pinkham  v.  Crocker,  77  Me.  563. 

TTRice  V.  Groffmann,  56  Mo.  434. 

78  Randall  v.  Kehlor,  60  Me.  37;  Argersinger  v.  Macnaughton, 
114  N.  Y.  535,  21  N.  E.  1022;    (Limiting  rule). 

79  Wright  V.  Solomon,  19  Cal.  64.  79  Am.  Dec.  196;  Thurston  v. 
Blanchard,  22  Pick  (Mass.)  20,  33  Am.  Dec.  700;  Allen  v.  St. 
Louis  Bank,  120  U.  S.  20,  7  Sup.  Ct.  460;  Benny  v.  Pegram,  18  Mo. 
191,  59  Am.  Dec.  298.  Factors'  acts  in  a  number  of  states  protect 
the  rights  of  innocent  parties  who  have  dealt  with  a  factor  in  the 
belief  that  he  was  owner  of  the  goods.  Stimson,  Am.  Stat.  Law, 
§  4381. 

•0  Evans  v.  Potter,  2  Gall.  (U.  S.),  2.  Or  to  meet  a  draft  drawn 
by  the  principal  against  proceeds  before  sale.  Boyce  y.  Commerce 
Bank,  22  Fed.  53. 


156  THE  LAW  OF  AGENCY. 

plied  power  to  barter  goods ;  ^^  nor  to  delegate  his  author- 
ity,^^ unless  the  employment  of  subagents  is  justified  by 
usage  of  the  trade,  or  the  course  of  dealings  between  the 
factor  and  his  principal. ^■^  A  factor  has  no  implied  author- 
ity to  bind  the  principal  by  negotiable  paper.^* 

§  103.  Broker.  A  broker  has  implied  power  to  perform 
such  acts  as  are  necessarily  incident  to  the  accomplishment 
of  his  agency  and  to  follow  established  usages  of  his  busi- 
ness.^^  He  may  usually  fix  a  reasonable  price,^^  agree  to 
terms  of  sale,^*^  and  give  such  warranties  as  are  justified  by 
custom.*^  His  authority,  as  a  rule,  does  not  include  power 
to  receive  payment  for  goods  sold ;  ®®  or  to  delegate  to  an- 
other the  duties  intrusted  to  him.''°  Within  the  scope  of 
authority  ordinarily  possessed  by  brokers,  he  may  bind  his 

81  Wing  V.  Neal  (Me.),  2  Atl.  881;  Wheeler  &  Wilson  Mfg.  Co. 
V.  Givan,  65  Mo.  89. 

82  Warner  v.  Martin.  11  How.  (U.  S.)  209;  Loomis  v.  Simpson, 
13  Iowa,  532;  Ante  §  33. 

«3Laussatt  v.  Lippincott,  6  Serg.  &  R.  (Pa.)  368.  9  Am.  Dec.  440. 

84  Emerson  v.  Providence  Mfg.  Co.,  12  Mass.  237,  7  Am.  Dec 
66;  Ante  §  99. 

85  Ante  §  89. 

8«  Putnam  v.  French,  53  Vt.  402,  38  Am.  Rep.  682;  Daylight 
Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45;  Bigelow  v. 
Walker,  24  Vt.  149.  58  Am.  Dec.  156. 

87  Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dec.  384;  Shack- 
man  V.  Little,  87  Ind.  181;  Ante  §  89. 

88  Pickert  v.  Marston,  68  Wis.  465,  32  N.  W.  550;  Smith  v.  Tracy, 
36  N.  Y.  82;  Schuchardt  v.  Aliens,  1  Wall.  (U.  S.)  359.  But  see 
Dood  V.  Farlow,  11  Allen  (Mass.),  426,  87  Am.  Dec.  726. 

«oSaladin  v.  Mitchell,  45  111.  79;  Graham  v.  Duckwall,  8  Bush. 
(Ky.)  12;   Iliggins  v.  Moore,  34  N.  Y.  417. 

90  Unless  power  can  he  implied  from  usage  as  in  the  case  of 
other  agents.  Ghcen  v.  Johnson,  90  Pa.  St.  38;  Rosenstock  v. 
Tormey,  32  Md.  169,  3  Am.  Rep.  125. 


SCOPE  OF  PARTICULAR  AGENCIES.  157 

principal  in  favor  of  innocent  third  persons,  notwithstand- 
ing undisclosed  restrictions  upon  his  authority.^^ 

§  104.  Auctioneer.  The  implied  powers  of  an  auc- 
tioneer are  very  limited.^^  He  can  not  sell  at  private  sale 
or  on  credit ;  ®^  nor  can  he  accept  anything  but  money  in 
payment  for  goods  sold ;  ^*  deliver  the  same  without  pay- 
ment ;  ^°  give  a  warranty ;  ^^  or  delegate  his  authority.**" 
So,  it  has  been  held  that  a  sale  for  less  than  the  price  fixed 
by  the  principal  would  not  be  binding,  even  in  favor  of  one 
who  relied  upon  the  apparent  authority  of  the  auctioneer 
to  determine  the  sale  price.^* 

§  105.  Attorney-at-law.  An  attomey-at-law  is  said  to 
have  implied  power  "to  do  all  acts,  in  or  out  of  court, 
necessary  or  incidental  to  the  prosecution  or  management 
of  the  suit,  and  which  affect  the  remedy  only,  and  not  the 
cause  of  action."^®  He  may  make  such  affidavits  as  are 
necessary  in  the  progress  of  the  cause;  ^°°  serve,  or  accept 
service,  of  all  necessary  processes ;  ^°^  stipulate  as  to  the 
issues  to  be  tried ;  ^"-  make  admissions  of  fact  for  purpose 

siLobdell  v.  Baker,  1  Mete.  (Mass.)  193,  35  Am.  Dec.  358;  Ante 
§  91. 

92  Williams  v.  Poor,  3  Cranch,(U.  S.)  251;  Bush  v.  Cole,  28  N. 
Y.  261,  84  Am.  Dec.  343. 

83  Marsh  v.  Jelf,  3  P.  &  F.  (Eng.)  234;  Williams  v.  Evans,  L.  R. 
1  Q.  B.   (Eng.)  352. 

o*Broughton  v.  Silloway,  114  Mass.  71,  19  Am.  Rep.  312. 

85  Broughton  v.  Silloway,  supra;  Brown  v.  Staton,  2  Chit. 
(Eng.)  353. 

»6  Blood  V.  French,  9  Gray  (Mass.),  197. 

97  Com.  V.  Harnden,  19  Pick.  (Mass.)  482. 

98  Bush  V.  Cole,  28  N.  Y.  261,  84  Am.  Dec.  343. 

99  Moulton  V.  Bowker,  115  Mass.  36,  15  Am.  Rep.  72. 

100  Wright  V.  Parks,  10  Iowa,  342;  Manley  v.  Headley,  10  Kan.  88. 

101  Anderson  v.  Watson,  3  C.  &  P.  (Eng.)  214;  Hefferman  v. 
Burt,  7  Iowa,  320,  71  Am.  Dec.  445. 

102  Bingham  v.  Supervisors,  6  Minn.    136 


158  THE  LAW  OF  AGENCY, 

of  trial ;  ^"^  submit  a  cause  to  arbitration ;  ^''*  order  print- 
ing of  necessary  briefs ;  ^°^  release  an  attachment  or  lien ;  ^""^ 
dismiss  an  action,  or  agree  to  a  nonsuit ;  ^°^  and  bring  a  new 
action,  after  a  nonsuit.^°^  But  on  the  other  hand,  such  at- 
torney has  no  implied  authority  to  confess  judgment ;  ^°^ 
release  the  cause  of  action  ;^^°  compromise  the  claim;  ^^^ 
release  property  from  the  lien  of  a  judgment  or  execu- 
tion ;  ^^^  or  in  any  way  prejudice  the  substantial  rights  of 
his  client."' 

103  Starke  v.  Kenan,  11  Ala.  819;   Lewis  v.  Sumner,  13  Mete. 
(Mass.)   269.     Admissions  must  be  distinct  and  formal  and  mad 
for  purpose  of  dispensing  with  proof.     Treadway  v.  Sioux  City, 
etc.  Ry.,  40  Iowa,  526. 

i04Sargeant  v.  Clark,  108  Pa.  588;  Holker  v,  Parker,  7  Cranch. 
(U.  S.)   436;    Brooks  v.  New  Durham,  55  N.  H.  559;   Haskell  v. ' 
Whitney,  12  Masa  47;   Connett  v.  Chicago,  114  111.  233. 

losweisse  v.  New  Orleans,  10  La.  Ann.  46;  Williamson,  etc.. 
Paper  Co.  v.  Bosbyshell,  14  Mo.  App.  534. 

lOG  Provided  the  release  be  made  before  judgment.  Benson  v. 
Carr,  73  Me.  76. 

107  Barrett  v.  Railway  Co.,  45  N.  Y.  628;  McLeran  v.  McNamara. 
55  Cal.  508;  Rogers  v.  Greenwood,  14  Minn.  333. 

108  Scott  V.  Elemendorf,  12  Johns.   (N.  Y.)  317. 
loowadhams  v.  Gray,  73  111.  415;   Pfister  v.  Wade,  69  Cal.  133 

10  Pac.  369. 

110  Mandeville  v.  Reynolds,  68  N.  Y.  528;  Gilliland  v.  Gasqui'. 
6  S.  C.  406;  Wadhams  v.  Gray,  73  111.  415. 

111  Fritchey  v.  Bosley,  56  Md.  96;  Jones  v.  Inniss,  32  Kan.  177, 
4  Pac.  95;  Maddux  v.  Bevans,  39  Md.  485;  Watt  v.  Brookover,  3' 
W.  Va.  323,  13  S.  E.  1007;  Danziger  v.  Pittsfield  Shoe  Co.,  204  111. 
145.  68  N.  E.  534. 

112  Phillips  V.  Dobbins,  56  Ga.  617;  Horsey  v.  Chew,  65  Md.  565; 
Benedif^t  v.  Smith,  10  Paige  (N.  Y.),  126. 

iisHalliday  v.  Stuart,  151  U.  S.  229,  14  Sup.  Ct.  302;  Lambert 
V.  Sanford,  2  Blarkf.  (Ind.)  137,  18  Am.  Dec.  149;  Marbourg  v. 
Smith,  11  Kan.  554.  Whatever  the  attorney  does  in  the  prosecu- 
tion of  the  remedy  will  usually  be  binding  on  the  client  though  it 
results  to  his  disadvantage.  Beck  v.  Bellamy,  93  N.  C.  129;  Foster 
V.  Wiley,  27  Mich.  244;  Moulton  v.  Bowkcr.  115  Mass.  36,  15  Am. 
Rep.  72. 


PART  III. 

EIGHTS  AE'D  LIABILITIES  BETWEEN 

PEINOIPAL  AI^D  THIKD 

PEESOJ^S. 


CHAPTER  X. 

FORM  OF  EXECUTION  NECESSARY  TO   BIND  PRINCIPAL. 

§  106.  In  general. 

107.  Sealed  instruments. 

108.  Negotiable  instruments. 

(a)  In  general. 

(b)  Parol  evidence  rule. 

(c)  Cashier. 

109.  Other  contracts. 

(a)  Undisclosed  agency. 

(b)  Election  to  hold  principaL 

(c)  Settlement  with  agent. 

110.  Agent's  liability. 

§  106.  In  general.  Where  an  agent,  acting  within  the 
scope  of  his  authority,  real  or  apparent,  enters  into  a  con- 
tract on  behalf  of  his  principal,  the  latter  is  bound  thereby 
as  effectually  as  though  he  had  contracted  in  person.  This 
statement  of  law  involves  the  conception  of  the  double  con- 
dition that  the  contract  was  within  the  scope  of  the  agent's 
authority,  and  that  it  was  entered  into  by  the  agent  on  be- 
half of  the  principal.  Clearly,  an  agent  authorized  to  pur- 
chase a  horse  does  not  bind  his  principal  by  a  bargain  not 


160  THE  LAW  OF  AGENCY. 

made  in  tlie  principal's  behalf.  Thus  far  in  our  discus- 
sion we  have  been  concerned  chiefly  with  the  question  of 
authority,- — the  manner  of  its  bestowal,  and  the  mode  of 
establishing  proof  of  its  existence.  In  the  present  chapter 
we  are  to  deal  more  particularly  with  the  manner  of  exe- 
cuting authority,  and  the  mode  of  establishing  the  condition 
that  its  execution  was  for,  and  in  behalf  of,  the  principal. 

§  107.  Sealed  instruments.  A  sealed  instrument, 
1  hough  executed  by  an  agent  within  the  scope  of  his  au- 
thority, will  not  be  binding  upon  the  principal  unless  it 
appears  upon  the  face  of  the  instrument  that  the  same  was 
executed  in  behalf  of  the  principal,  and  that  he,  clearly, 
is  the  party  thereto.^  In  determining  this  condition,  ex- 
traneous evidence  will  not  be  considered,  but  the  instru- 
ment alone  is  relied  upon ;  ^  and  in  construing  the  instru- 
ment, for  the  purpose  of  its  determination,  strict  and  tech- 
nical rules  are  observed.^  Broadly  stated,  a  principal  can 
not  be  made  liable  upon  a  sealed  instrument  executed  for 
him  by  his  agent  unless  he  appears  as  the  party  thereto,  and 
Ihe  grant  or  covenant  purports  to  be  his,  and  the  instrument 
is  signed  and  sealed  by  or  for  him.* 

It  is  not  sufficient  to  bind  the  principal  that  his  agent 
in  executing  an  instrument,  describes  himself  as  such.     Na 

1  Stinchfield  V.  Little,  1  Greenl.  (Me.)  231,  10  Am.  Dec.  65; 
FuUman  v.  Westbrookfield,  9  Allen  (Mass.),  1;  Vance  v.  Ander- 
son. 39  Iowa,  426;  Cadell  v.  Allen,  99  N.  C.  542,  6  S.  E.  399;  Van 
Dyke  v.  Van  Dyke,  123  Ga.  686,  51  S.  E.  582. 

2  Spencer  v.  Field,  10  Wend.  (N.  Y.)  88;  Briggs  v.  Partridge,  64 
N.  Y.  357.  21  Am.  Rep.  017;  Hypes  v.  Criinu,  89  111.  134,  31  Am. 
Rep.  71- 

3  McClure  v.  Herring,  70  Mo.  18,  35  Am.  Rep.  404;  Hunlngton  ▼. 
Knox,  7  Cush.  (Mass.)  371. 

*  Prather  v.  Ross,  17  Ind.  495;  Coiuh  v.  Ingersoll,  2  Pick.  (Mass.) 
292;  Calell  v.  Allen,  99  N.  C.  542,  0  S.  E.  399. 


FORM    OF    EXECUTION.  161 

legal  effect  is  given  to  mere  descriptio  personae.  Thus, 
where  a  bond  was  executed  by  persons  who  described  them- 
selves as  "Trustees  of  the  Baptist  Society  of  the  Town  of 
Richfield,"  the  court  held  that  it  was  not  the  bond  of  the 
Baptist  Church.^  So,  it  is  not  sufficient  to  bind  the  prin- 
cipal that  the  instrument  recites  that  the  agent  acts  as  his 
attorney,  or  by  virtue  of  power  by  him  beetowed ;  for  a  con- 
tract, under  strict  rules  of  construction,  applicable  to 
sealed  instruments,  is  not  necessarily  the  personal  obliga- 
tion of  a  party  merely  because  of  some  indication  that  it 
was  made  at  his  behest  or  for  his  benefit.  Thus,  in  an 
early  Massachusetts  case,  one  Joiiathan  Elwell  duly  au- 
thorized Joshua  Elwell  to  execute  a  conveyance  of  land; 
and  the  latter  set  forth  in  a  deed  his  power  of  attorney 
from  Jonathan,  and  followed  its  recital,  in  substance,  with 
the  words :  ' '  Now  know  ye,  that  I,  the  said  Joshua,  by 
virtue  of  the  power  aforesaid,  do  hereby  grant  and  con- 
vey, etc.  And  I  do  covenant  that  the  said  Jonathan  at 
the  time  of  executing  said  power  was,  and  now  is,  law- 
fully seized  of  the  premises  and  that  he  will  warrant  and 
defend  the  same,  etc.  In  testimony  whereof,  I  have  here- 
unto set  the  name  and  seal  of  the  said  Jonathan."  The 
instrument  was  signed  "Joshua  Elwell"  (L.  S.).  This 
was  not  the  deed  of  the  principal,  Jonathan  Elwell;  for 
clearly,  neither  in  the  body,  nor  in  the  execution,  of  the 
instrument  does  the  principal  appear  as  grantor.*'  So,  in 
another  case,  a  deed,  purporting  to  be  made  by  "The  New 

sTaft  V.  Brewster,  9  Johns.  (N.  V.)  334,  6  Am.  Dec.  280;  Lutz 
V.  Linthicum,  8  Pet.  (U.  S.)  165;  Quigley  v.  De  Haas,  82  Pa.  St. 
2G7;  Dayton  v.  Warne,  43  N.  J.  Law,  659;  Pratt  v.  Beaupre,  la 
Minn.  187. 

6  Elwell  V.  Shaw,  16  Mass.  42,  8  Am.  Dec.  126;    Stinchfield  v. 
Little,  1  Greenl.   (Me.)  231,  10  Am.  Dec.  65. 
11 


162  THE  LAW  OF  AGENCY. 

England  Silk  Company,  a  corporation,  by  Christopher  Colt, 
their  treasurer,"  was  attested:  "In  witness  whereof,  I,  the 
said  Christopher  Colt,  in  behalf  of  said  company,  and  as 
their  treasurer,  have  hereunto  set  my  hand  and  seal;"  and 
was  signed  "Christopher  Colt,  Treasurer,  New  England 
■  Silk  Company ;"  and  acknowled;:  3d  as  the  free  act  and  deed 
of  Christopher  Colt,  Treasurer,  etc.  The  instrument  was 
held  not  to  be  the  deed  of  the  corporation,  for  the  reason 
that  it  was  not  executed  in  the  name  of  the  company.'^  As 
was  said  in  another  case :  ' '  However  clearly  the  body  of  the 
deed  may  show  an  intent  that  it  shall  be  the  act  of  the  prin- 
cipal, yet  unless  it  is  executed  by  his  attorney  for  him,  it 
is  not  his  deed,  but  the  deed  of  the  attorney  or  of  no  one."  * 
"Where  a  deed  is  properly  executed  in  the  name  of  the 
principal,  the  courts  incline  to  greater  indulgence  with  in- 
accuracies in  the  body  of  the  instrument.®  Thus,  where  a 
party  to  a  lease  was  described  as  "Edward  P.  Lawrence, 
President  of  the  Northwestern  Distilling  Company,"  but 
the  instrument  was  signed  "Northwestern  Distilling  Com- 
pan}^  (L.  S.)  By  Edward  F.  Lawrence,  President;  "  it  was 
lield  to  be  the  lease  of  the  company.^"  So,  in  a  Missouri  case, 
llie  deed  in  substance  read:  "I,  Thomas  W,  Hawkins,  for 
myself  and  as  attorney  for  Leo  Tarlton  and  Augusta  Tarl- 

7  Brinley  v.  Mann,  2  Cush.  (Mass.)  337.  48  Am.  Dec.  669.  He 
should  have  executed  the  deed  in  the  name  of  the  company, 
should  also  have  affixed  the  seal  of  the  company,  and  acknowl- 
edged the  instrument  to  be  the  deed  of  the  company. 

«Clarko  v.  Courtney.  ."5  Pet.  (U.  S.)  319;  Mussey  v.  Scott,  7 
Cush.  (Mass.)  216,  54  Am.  Dec.  719;  Fowler  v.  Shearer,  7  Mass.  14. 

0  Shanks  v.  Lancaster,  5  Gratt.  (Va.)  110,  50  Am.  Dec.  108; 
Hale  V.  Woods,  10  N.  H.  470,  34  Am.  Dec.  176;  Butterfield  v.  Beall, 
3  Ind.  203. 

10  Northwestern  Distilling  Co.  V.  Brant,  69  111.  658,  10  Am.  Rep 
631. 


FOItM    OF    EXECUTION.  163 

ton,  by  their  letters  of  attorneA%  in  consideration,  etc.,  to  us 
paid,  do  sell  and  convey,  etc.  And  we,  the  said  Leo  Tarlton 
and  Augusta  Tarlton,  do  covenant,  etc.  In  witness  whereof, 
T.  Thomas  W.  Hawkins,  in  my  own  right  have  hereunto  set 
;ny  hand  and  seal,  and  as  attorney  for  Leo  Tarlton  and 
Augusta  Tarlton,  have  hereunto  set  their  hands  and  seals." 
The  deed  was  signed:  "Thomas  W.  TLiAvldns  (L.  S.),  Leo 
Tarlton  (L.  S.),  Augusta  Tarlton  (L.  S.),  By  Thomas  W. 
Hawkins,  their  attorney  in  fact."  This  instrument  was 
held  good  against  the  principals. ^^  "The  manner  in  which 
the  deed  was  executed,"  said  the  court,  "the  covenants  en- 
tered into  by  Tarlton  and  his  wife  that  they  would  warrant 
the  title;  the  declaration  in  the  deed  that  Hawkins  is  acting 
for  the  principals,  naming  them,  by  virtue  of  their  power  of 
attorney,  the  acknowledgment  of  the  receipt  of  the  money 
by  'us,'  unmistakably  show  that  it  was  the  deed  of  the  prin- 
cipals; and  as  this  all  appears  clearly  in  the  instrument, 
the  precise  form  or  arrangement  of  the  words  does  not  seem 
to  be  essential."  ^^ 

The  usual  and  approved  form  of  executing  a  deed  by  at- 
torney is  to  write  the  principal's  name  and  add  "By  A.  B., 
his  attorney."  But,  as  has  frequently  been  held,  this  is 
not  the  only  form.^^  Thus,  where  a  lease,  purporting  to  be 
made  by  one  Mussey,  was  signed  "John  Hammond  for  B.  B. 

11  McClure  v.  Herring,  70  Mo.  18,  35  Am.  Rep.  404. 

12  McClure  v.  Herring,  siipra. 

i3Wilburn  v.  Larkin,  3  Blackf.  (Ind.)  55;  Hutchins  v.  Byrnes, 
9  Gray  (Mass.),  367;  Whitehead  v.  Reddick,  34  N.  C.  95;  Hale  v. 
Woods,  10  N.  H.  470,  34  Am.  Dec.  176.  The  form  of  signature  em- 
ployed by  an  agent  is  unimportant,  so  that  it  appears  that  the 
contract  is  in  the  name  of  the  principal.  Lazarus  v.  Shearer,  2 
Ala.  718.  It  is  not  necessary  that  it  appears  upon  the  face  of  the 
instrument  that  it  is  executed  by  an  attorney.  First  Nat.  Bank 
V.  Loyhed,  28  Minn.  396,  10  N.  W.  421. 


164  THE  LAW  OF  AGENCY. 

Mussey, "  tlie  execution  was  deemed  sufficient  to  bind  the 
principal."  Though,  the  ruling  might  have  been  different 
had  the  instrument  been  signed :  ' '  Jolm  Hammond,  Agent 
of, ' '  or  even  ' '  Agent  for,  Mussey ;  ' '  since  such  designation 
might  have  been  mere  descriptio  personae}^  Application 
of  the  rules  under  discussion  naturally  leads  to  some  dis- 
cord in  the  decisions.  An  instrument  that  one  court  might 
construe  as  sufficiently  executed  to  bind  the  principal  might 
be  held  insufficient  by  another  court ;  but  all  make  impera- 
tive the  condition  that  in  order  to  bind  the  principal  it 
niiLst  clearly  appear  upon  the  face  of  the  instrument  that 
he  is  the  party  thereto,  and  that  the  same,  beyond  question, 
has  been  executed  for  him.^® 

§  108.  Negotiable  instruments,     (a)  In  general.    As  in 

the  case  of  sealed  instruments,  a  principal  will  not  be  bound 
by  a  negotiable  instrument,  though  executed  by  an  agent 
within  the  scope  of  his  authority,  unless  he  is  named  therein 
as  a  party  thereto. ^^     In  construing  such  an  instrument, 

14  Mussey  v.  Scott,  7  Cush.  (Mass.)  216,  54  Am.  Deo.  719.  Where 
an  instrument  shows  on  its  face  the  names  of  the  contracting  par- 
ties, the  agent  maj^  sign  his  own  name  first,  adding  "agent  for" 
his  principal.     Smith  v.  Morse,  9  Wall.  (U.  S.)  76. 

15  Parks  V.  L.  &  S.  Turnpike  Road  Co.,  27  Ky.  456;  Spencer  v. 
Field,  10  Wend.  (N.  Y.)  87;  Bryson  v.  Lucas,  84  N.  C.  680,  37  Am. 
Rep.  634;  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101. 

icTobin  v.  Larkin,  183  Mass.  389,  67  N.  E.  340.  There  is  a 
general  disposition  to  relax  the  rigid  rules  of  the  common  law  in 
regard  to  conveyances,  and  to  effectuate  the  intention  of  the  par- 
ties, where  that  can  certainly  be  ascertained  from  the  deed.  Mc- 
Clure  V.  Herring,  70  Mo.  18;  Avery  v.  Dougherty,  102  Ind.  443,  2 
N.  E.  123. 

17  Bank  of  British  North  America  v.  Hooper,  5  Gray  (Mass.) 
T)^l,  66  Am.  Dec.  390;  Fowler  v.  Atkinson,  6  Minn.  578;  Cragin  v. 
lyjvell,  109  U.  S.  104.  3  Sup.  Ct.  13?;  Anderson  v.  Pearce,  36  Ark. 
29:5.  38  Am.  Rep.  39;  Sthison  v.  Lee,  68  Miss.  113,  8  South.  272. 


FORM    OF    EXECUTION.  165 

for  the  purpose  of  determining  whether  it  is  executed  in 
behalf  of  a  principal,  greater  liberality  may  be  indulged 
than  in  the  construction  of  sealed  instruments.  But  on 
principle,  the  requirements  are  identical,  and  unless  it  ap- 
pears upon  the  face  of  the  instrument  that  the  same  was 
executed  in  behalf  of  the  principal,  he  will  not  be  bound 
thereby ;  ^^  though,  as  we  shall  presently  see,  a  modifying 
doctrine  has  been  adopted  in  some  of  the  states.^^  Thus, 
where  a  note  read.  ' '  We  the  trustees  of  the  Seventh  Presby- 
terian Church  promise  to  pay,  etc.,"  and  was  signed  by 
individual  names  followed  by  the  designation,  "Trustees," 
it  was  held  that  the  church  was  not  bound.^"  Said  the 
court:  "Although  the  words,  'the  trustees  of  the  Seventh 
Presbyterian  Church'  appear  in  the  body  of  the  note,  and 
the  word  'trustees'  is  appended  to  the  signatures,  there  are 
no  words  used  imphnng  an  undertaking  on  the  part  of  the 
•corporation."-^  So,  a  note  by  which  "I,  John  Franklin. 
President  of  the  Mechanic  Fire  Insurance  Company"  prom- 
ised to  pay  a  sum  of  money,  was  held  not  to  be  the  note 
of  the  company ;^^  and  a  note  signed:  "John  I.  Eldridge, 
Trustee  of  Sullivan  Railroad,"  was  held  the  personal  ob- 
ligation of  Eldridge. ^^ 

On  the  other  hand,  a  note  signed:  "Joseph  Talbot  agent 

ispentz  V.  Stanton,  10  Wend.  (N.  Y.)  271,  25  Am.  Dec.  558; 
Anderton  v.  Shoup,  17  Ohio  St.  125;  Williams  v.  Robbins,  16  Gray 
(Mass.)  77,  77  Am.  Dec.  39G;  Ranger  v.  Thalman,  178  N.  Y.  574, 
70  N.  E.  1108. 

i»Post,  §  108   (b). 

20  Powers  v.  Briggs,  79  111.  493,  22  Am.  Rep.  175;  Bradlee  v. 
Boston  Glass  Co.,  16  Pick.  (Mass.)  347;  Barlow  v.  Congregational 
Society,  8  Allen  (Mass.)  460;  Pack  v.  White,  78  Ky.  243. 

ti  Powers  V.  Briggs,  79  111.  493,  22  Am.  Rep.  175. 

"Barker  v.  Mechanic  Fire  Ins.  Co.,  3  Wend.  (N.  Y.)  94. 

«Fiske  V.  Eldridge,  12  Gray  (Mass.),  474;  Foster  v.  Fuller,  6 
Mass.  58. 


166  THE  LAW  OF  AGENCY. 

for  David  Perry "  was  held  the  note  of  Perry.=*  In  dia- 
cussing  this  holding,  in  another  case,  the  court  said:  ''The 
variation  between  the  words  'for'  and  'of  seems  at  first 
view  slight;  but  in  the  connection  in  which  they  are  used 
in  signatures  of  this  kind  the  difference  is  substantial. 
'Agent  of  or  'President  of  a  corporation  named,  simply 
designates  a  personal  relation  of  the  individual  to  the  cor- 
poration. 'Agent  for'  a  particular  person  or  corporation, 
may  designate  either  the  general  relation  which  the  person 
signing  holds  to  another  party,  or  that  the  particular  act 
in  question  is  done  in  behalf  of  and  as  the  contract  of  that 
other;  and  the  court,  if  such  is  manifestly  the  intention  of 
the  parties,  may  construe  the  words  in  the  latter  sense.  "^^ 
But  even  "agent  for"  has  been  held  under  some  circum- 
stances a  mere  descriptio  personae  of  the  agent,  as  where 
a  paper  was  signed  "Robert  Eastman,  Agent  for  Ward  6. 
Lowell,  Mass.""  As  stated  by  Story,  however,  "if  it  can. 
upon  the  whole  instrument,  be  collected  that  the  true  object 
and  intent  of  it  are  to  bind  the  principal,  and  not  to  bind 
the  agent,  courts  of  justice  will  adopt  that  construction  of 
it,  however  informally  it  may  be  expressed."  ^^  And  in 
ascertaining  the  true  intention  of  the  parties,  many  court-s. 
as  already  stated,  construe  a  negotiable  instrument  with 

24  Ballou  V.  Talbot,  16  Mass.  4G1. 

25  Tucker  Mfg.  Co.  v.  Fairbanks.  98  Mass.  101. 

28Shattuck  V.  Eastman,  12  Allen  (Mass.),  3G9;  Tannatt  V. 
Rocky  Mt.  Nat.  Bank,  1  Colo.  278,  9  Am.  Rep.  15G;  Exchange  Bank 
V.  Lewis  County,  28  W.  Va.  273.  Thus,  a  note  signed  "D.  H.,  agent 
for  the  Curchman"  (a  newspaper  conducted  by  the  agent  on  be- 
half of  his  principal)  was  held  not  to  bind  the  principal.  Dewltt 
V.  Walton,  5  Selden  (9  N.  Y.),  571.  So  the  Insertion  of  "for"  or 
"  In  behalf  of"  a  principal,  in  the  body  of  the  note  has  been  he'd 
not  sufficient  to  bind  the  principal.  Barlow  v.  Society,  8  Alb^  ' 
(Mass.),  460;   Bradlce  v.  Boston  Glass  Co.,  16  Pick.   (Mass.)  S47 

»T  Story  on  Promissory  Notes,  §  68. 


FOKM    OF    EXECUTION.  167 

greater  liberality  than  -would  prevail  in  the  case  of  sealed 
instruments.^^  Thus  where  a  note  was  signed:  "G.  A. 
Colby,  Prest.  Pac.  Peat  Coal  Co.,  D.  K.  Tripp,  Sec.,"  and 
was  indorsed  by  Colby  and  four  others,  the  court  held  that, 
read  as  a  whole,  it  was  apparent  that  the  note  was  the  note 
of  the  company,  indorsed  by  individuals.-^  So,  a  note  read- 
ing: ''We,  as  the  trustees  of  the  Methodist  Church,  promise 
to  pay,  etc.,"  was  held  the  note  of  the  church,  though  signed 
merely  by  individual  names  followed  by  the  word  "  trus- 
tees. "^^ 

A  note  signed  by  an  individual  as  "Secretary,"  but  im- 
pressed with  the  seal  of  a  corporation,  of  which  the  indi- 
vidual was  secretary,  was  held  the  note  of  the  corporation ;  ^^ 
and  so  it  was  held  that  a  check,  having  the  words  "Aetna 
]\rills"  printed  in  the  margin,  and  signed  "J.  D.  Farns- 
worth,  Treasurer,"  was  the  check  of  the  Aetna  Mills,  exe- 
cuted by  Farnsworth  as  their  treasurer  and  in  their  be- 
half.^^  Other  cases  will  be  found,  of  course,  in  which  com- 
mercial paper  having  the  name  of  a  corporation  printed  in 
the  mar-in,  and  signed  by  the  maker  as  agent,  has  been  held 
not  binding  on  the  corporation.^^  As  was  said  in  a  Massa- 
chusetts ease,  "the  difficulty  is  not  in  ascertaining  the  gen- 

28Liebsclier  v.  Kraus,  74  Wis.  387,  43  N.  W.  166;  Blanchard  v. 
Kaull,  44  Cal.  440;  Andrews  v.  Estes,  11  Me.  267,  26  Am.  Dec.  521; 
New  Market  Sav.  Bank  v.  Gillett,  100  111.  254,  39  Am.  Rep.  39; 
Franklin  v.  Johnson,  147  111.  520,  35  N.  E.  480. 

29  Farmers'  &  Mechanics'  Bank  v.  Colby,  64  Cal.  352. 

so  Leach  v.  Blow,  8  Smedes  &  M.  (Miss.)  221;  Mann  v.  Chandler, 
9  Mass.  335;  Blanchard  v.  Kaull,  44  Cal.  440. 

81  Means  v.  Swormstedt,  32  Ind.  87,  2  Am.  Rep.  330;  Guthrie  V. 
Imbrie,  12  Ore,  182,  6  Pac.  664;  Scanlan  v.  Keith,  102  111.  634,  40 
Am.  Rep.  624. 

32  Carpenter  v.  Farnsworth,  106  Mass.  561,  8  Am.  Rep.  360; 
Hitchcock  V.  Buchanan,  105  U.  S.  416. 

33  Casco  Nat.  Bank  v.  Clark,  139  N.  Y.  307,  34  N.  E.  908. 


168  THE  LA.W  OP  AGENCY 

eral  principles  which  must  govern  cases  of  this  nature,  but 
in  applying  them  to  the  different  forms  and  shades  of  ex- 
pression in  particular  instruments.  A  mere  description  of 
the  general  relation  or  office  which  the  person  signing  the 
paper  holds  to  another  person,  or  to  a  corporation,  without 
indicating  that  the  particular  signature  is  made  in  the  exe- 
cution of  the  office  and  agency,  is  not  sufficient  to  chargo 
the  principal  or  to  exempt  the  agent  from  personal  lia- 
bility."^* But  where  a  note  read,  "We,  the  undersigned, 
committee  for  the  First  School  District,  promise  in  behalf 
of  said  school  district,"  and  was  signed  by  the  individual 
members,  with  the  word  "Committee"  opposite  their  names. 
it  was  held  that  the  note  was  properly  executed  to  bind  the 
principal. ^^ 

(b)  Parol  evidence  rule.  The  rule  discussed  in  the  pre- 
ceding subdivision  has  been  modified  in  a  number  of  states 
to  the  extent  that  where,  upon  the  face  of  a  negotiable  in- 
strument, there  appears  reasonable  indication  that  the 
maker  did  not  intend  to  bind  himself,  but  was  seeking  to 
execute  the  same  in  behalf  of  another,  parol  evidence  maj- 
be  introduced  to  clear  up  the  ambiguity  and  to  show  who 
was  intended  to  be  bound  by  the  instrument.^^  Thus, 
where  a  signature  in  form  was:  "John  Kean,  President 

8*  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101;  Olcott  v.  Tioga 
Ry.  Co.,  27  N.  Y.  546,  84  Am.  Dec.  298;  Robinson  v.  Kanawha  Val- 
ley Bank,  44  Ohio  St.  441;  MoClellan  v.  Robe,  93  Ind.  298. 

35  Andrews  v.  Estes,  11  Me.  267,  26  Am.  Dec.  521;  Mann  v.  Chan- 
dler, 9  Mass.  335;  Mott  v.  Hicks,  1  Cow.  (N.  Y.)  513,  13  Am.  Dec. 
550. 

3«  Ilager  v.  Rice,  4  Colo.  90,  34  Am.  Rep.  68;  Bean  v.  Pioneer 
Mining  Co.,  66  Cal.  451,  6  Pac.  86;  Mechanics'  Bank  v.  Bank,  5 
Wheat.  (U.  S.)  326;  Second  Nat.  Bank  v.  Steel  Co.,  155  Ind.  581, 
58  N.  E.  833;  Kline  v.  Bank,  50  Kan.  91,  31  Pac.  688;  Laflin  & 
Rand  Power  Co.  v.  Slnsheimcr,  48  Md.  411.  30  Am.  Rep.  472. 


FORM   OF   EXECUTION.  169 

Elizabethtown  R.  R.  Co.,"  it  was  held  that  parol  evidence 
was  properly  admitted  to  show  that  Kean  contracted  in 
behalf  of  the  company.'^  In  answer  to  the  objection  that 
the  effect  of  such  evidence  was  to  vary  the  terms  of  the 
written  instrument,  the  court  said:  ''It  is  at  best,  upon  the 
face  of  the  instrument,  doubtful  by  whom  it  was  executed. 
It  is  not  clear  who  was  the  contracting  party.  *  *  * 
The  evidence  is  not  adduced  to  discharge  the  agent  from  a 
personal  liability,  which  he  has  assumed,  but  to  prove  thai 
in  fact  he  never  incurred  that  liability.  Not  to  aid  in  the 
construction  of  the  instrument,  but  to  prove  whose  instru- 
ment it  is. ' '  ^^  So,  where  the  makers  of  a  note  designated 
themselves  ''Trustees  of  the  First  Baptist  Soeiet}^  of  the 
Village  of  Broekport,"  it  was  held  that  though  prima  facie 
the  individual  obligation  of  the  makers,  yet  parol  evidence 
could  be  introduced  to  show  that  the  intention  of  the  par- 
ties was  to  bind  the  Society.^^  "Where  a  note  read  "I  prom- 
ise to  pay"  a  stated  sum  of  money  "for  building  a  school 
house  in  District  No.  3,"  and  was  signed  "P.  T.  Reynolds, 
Local  Director,"  the  court  held  that  it  might  be  shown  by 
parol  that  the  note  was  intended  to  be  that  of  the  district.*" 
And  like  rulings  have  been  made  in  a  number  of  cases.*^ 
Even  though  the  name  of  a  principal  does  not  appear 

37  Kean  v.  Davis,  21  N.  J.  Law,  683,  47  Am.  Dec.  182;  Hovey  v. 
Magill,  2  Conn.  680;  Contra,  Robinson  v.  Kanawlaa  Valley  Bank, 
44  Oliio  St.  441,  8  N.  E.  583;  Hypes  v.  Griffin,  89  III.  134,  31  Am. 
Rep.  71.  P 

38  Kean  v.  Davis,  supra. 

30  Broclvvv'ay  v.  Allen,  17  Wend.  (N.  Y.)  40;  Newman  v.  GreefF, 
101  N.  Y.  663.  5  N.  E.  335. 

*oMcClellan  v.  Reynolds,  49  Mo.  312. 

*i  Martin  v.  Smith,  65  Miss.  1,  3  South.  33;  Keidan  v.  Winegar, 
95  Mich.  430,  54  N.  W.  901;  Miller  v.  Way,  5  S.  D.  468,  59  N.  W. 
467;  Case  Mfg.  Co.  v.  Saxman,  138  U.  S.  431,  11  Sup.  Ct.  360. 


170  THE  LAW  OF  AGENCY. 

upon  the  face  of  an  instrument,  but  the  maker  merely  des- 
ignates himself  ''agent,"  it  has  been  held  that,  at  least  be- 
tween the  original  parties,  parol  evidence  may  be  adduced 
to  show  that  it  was  not  their  intention  to  bind  the  agent, 
but  that  he  was  dealt  w^ith  in  his  representative  character.^- 
Said  the  Supreme  Court  of  the  United  States:  "The  ordi- 
narj^  rule  undoubtedly  is  that  if  a  person  merely  adds  to 
the  signature  of  his  name  the  Avord  'agent,'  'trustee,'  'treas- 
urer,' etc.,  without  disclosing  his  principal,  he  is  personally 
bound.  The  appendix  is  regarded  as  a  mere  descriptio 
personae.  But  if  he  be  in  fact  a  mere  agent,  trustee  or 
officer  of  some  principal,  and  is  in  the  habit  of  expressing 
in  that  Avay  his  representative  character,  in  his  dealings  with 
a  particular  party,  who  recognizes  him  in  that  character, 
it  would  be  contrary  to  justice  and  truth  to  construe  the 
documents,  thus  made  and  used,  as  his  personal  obligations 
contrary  to  the  intent  of  the  parties. ' '  *^  The  use  of  such 
designations  alone,  without  disclosure  of  a  principal,  would 
not  charge  third  persons,  into  whose  hands  an  instrument 
caine,  with  knowledge  of  the  representative  character  of  the 
signer,  and  hence  probably  would  not  render  the  principal 
liable  to  them.**  Though,  were  it  shown  that  such  third 
person  had  actual  knowledge  of  the  agency,  and  took  the 
instrument  in  reliance  upon  it,  his  rights,  it  would  seem, 
should  be  the  same  as  those  of  the  original  holder." 

42  Lacy  V.  Dubuque  Lumber  Co.,  43  Iowa,  510;  Sayre  v.  Nichols, 
7  Cal.  535,  C8  Am.  Dec.  280;  Burkhalter  v.  Perry  &  Brown,  127  Ga. 
438,  56  S.  E.  C31. 

<3Mf<tcalf  V.  Williams,  104  U.  S.  93. 

♦♦Mt'tcalf  V.  Williariis,  supra;  Slawson  v.  Lorlng,  5  Allen 
(M.'isH.)   340,  81  Am.  Dec.  750. 

"  Keldan  v.  Winegar,  95  Mich.  430,  54  N.  W.  901;  Davis  v.  Hen- 
derson, 25  Miss.  549.  59  Am.  Dec.  229. 


FORM   OP    EXECUTION.  171 

(c)  Cashier.  Even  in  those  states  where  the  parol  evi- 
dence rule,  in  its  entirety,  is  not  followed,  the  courts  hold 
that  commercial  paper  signed  by  the  cashier  of  a  bank, 
who  adds  to  his  signature  the  word  "Cashier,"  may  be 
shown  to  have  been  executed  in  behalf  of  the  bank.-*''  The 
rule  is  frequently  extended  to  paper  signed  by  prudential 
officers  of  any  corporation.^'  This  form  of  signature  is  in 
accordance  with  business  usage  so  well  established  that  the 
paper,  on  its  face,  indicates  an  obligation  on  behalf  of  the 
bank  or  other  corporation  rather  than  a  personal  obligation 
of  the  officer  who  signs  it. 

§  109.  Other  contracts,  (a)  Undisclosed  agency.  We 
have  seen  in  the  foregoing  sections  that  the  principal  is  not 
bound  by  either  a  sealed  or  negotiable  instrument,  executed 
by  his  agent,  within  the  scope  of  his  authority,  unless,  upon 
the  face  of  such  instrument,  the  principal  appears  as  the 
party  thereto ;  except  in  those  states  in  which,  under  the 
[)arol  evidence  rule,  it  is  competent  to  show  by  extraneous 
evidence  that  an  agent  acted  in  a  representative  character 
in  executing  a  negotiable  instrument,  where  upon  the  face 
of  such  instrument  there  is  some  indication  that  such  is  the 
fact.  Coming  now  to  simple 'non-negotiable  contracts,  a 
different  rule  applies.  "Where  an  agent,  acting  within  the 
scope  of  his  authority,  executes  a  simple  non-negotiable 
contract,  apparently  in  his  own  behalf,  but  in  realty  for  his 
principal,  the  principal  is  bound  thereby,  notwithstanding 
that  the  agency  was  undisclosed,  and  that  the  other  party 

*6McHenry  v.  Ridgely,  2  Scam.  (111.)  309,  35  Am.  Dec.  110; 
Comercial  Bank  v.  French,  21  Pick.  (Mass.)  486,  82  Am.  Dec. 
280;  Bank  of  Manchester  v.  Slason,  13  Vt.  334. 

«Scanlan  v.  Keith,  102  111.  634,  40  Am.  Rep.  624;  Hypes  v. 
Griffin,  89  111.  134,  31  Am.  Rep.  71. 


172  THE  LAW  OF  AGENCY. 

contracted  under  the  belief  that  he  was  dealing  with  the 
agent  personally.*^  If  the  contract  be  in  writing  and  signed 
by  the  agent  individually, — though  without  indication  of 
his  representative  character, — extraneous  evidence  may  be 
adduced  to  show  that,  as  a  matter  of  fact,  he  dealt  in  behalf 
of  an  undisclosed  principal,  and  that  the  latter,  therefore, 
is  a  party  to  the  contract.*''  This  is  the  striking  doctrine  of 
undisclosed  agency,  and  applies  even  where  a  contract  is 
required  by  the  statute  of  frauds  to  be  in  writing.^"  To 
thus  bring  into  a  contract  a  person  who  does  not  appear  as 
a  party  thereto,  and  who  was  unknown  to  the  other  contract- 
ing party,  seems  at  first  blush  violative  of  fundamental 
principles  of  contracts.  But  the  doctrine  is  firmly  estab- 
lished in  the  law  of  agency.  As  was  said  in  an  English 
case,  "There  is  no  doubt  that  it  is  competent  to  show  that 
one  or  both  of  the  contracting  parties  were  agents  for  other 
persons,  and  acted  as  such  agents  in  making  the  contract, 
so  as  to  give  the  benefit  of  the  contract  on  the  one  hand  to, 
and  charge  with  liability  on  the  other,  the  unnamed  princi- 
pals.    *     *     *     The  evidence  in  no  way  contradicts  the 

48  Woodford  v.  Hamilton,  139  Ind.  481,  39  N.  B.  47;  Schendel  v. 
Stevenson,  153  Mass.  351,  26  N.  E.  689;  Lamb  v.  Thompson,  31 
Neb.  448,  48  N.  W.  58;  Chandler  v.  Coe,  54  N.  H.  561;  Higgins  v. 
Bellinger,  22  Mo.  397;  Hillman  v.  Hulett,  149  Mich.  289,  112  N.  W. 
918;  Pulver  v.  Burke,  56  Barb.  (N.  Y.)  39.  Where  one  conducts 
a  business  in  his  own  name,  but  really  as  agent  for  an  undis- 
closed principal,  the  latter  can  not  resist  liability  for  goods  sold 
the  agent  on  credit,  on  the  ground  that  he  had  given  secret  orders 
to  the  agent  not  to  buy  on  credit.  Hubbard  v.  Ten  Brook,  124  Pa. 
St.  291,  16  Atl.  817. 

•«oKirschl)on  v.  Bonzel,  67  Wis.  178.  29  N.  W.  907;  Waddlll  v. 
Sebree,  88  Va.  1012,  14  S.  E.  849;  Randolph  v.  Wheeler,  182  Mo. 
145,  81  S.  W.  419. 

noLernod  v.  Johns,  9  Allen  (Ma,ss.),  419;  Kinsley  v.  Siebrecht. 
92  Me.  23.  42  Atl.  249. 


FORM   OF    EXECUTION.  173 

written  agreement.  It  does  not  deny  that  it  is  binding  on 
those  whom,  on  the  face  of  it,  it  purports  to  bind;  but  it 
shows  that  it  also  binds  another,  by  reason  of  tlie  fact  that 
the  act  of  the  agent,  in  signing  the  agreement,  in  pursuance 
of  his  authority,  is  in  law  the  act  of  the  principal. ' '  ^^ 

(b)  Election  to  hold  principal.  Where  the  contract  on 
its  face  is  the  individual  obligation  of  the  agent,  such  obli- 
gation does  not  cease  upon  disclosure  of  a  principal.  The 
other  contracting  party,  upon  learning  of  the  existence  of 
an  undisclosed  principal,  may,  at  his  option,  hold  the 
agent  to  his  contract,  or  he  may  elect  to  hold  the  principal. ^- 
The  election,  it  would  seem,  should  be  made  within  a  rea- 
sonable time;  and,  so,  once  the  party  makes  an  election 
to  hold  the  agent,  he  is  irrevocably  bound  thereby  and  can- 
not subsequently  come  back  on  the  principal.^^  What  con- 
stitutes an  election  is  a  question  of  fact.  Merely  bringing 
suit  has  been  held  not  conclusive ;  ^*  but  recovery  of  judg- 
ment might  be,^°  and  certainly  would  be,  were  the  judg- 

51  Higgins  V.  Senior,  8  M.  &  W.  834. 

52  Kinsley  v.  Davis,  104  Mass.  178;  Elliott  v.  Bodine,  59  N.  .T. 
Law,  5G7,  36  Atl.  1038;  Schweyer  v.  Jones,  152  Mich.  241,  115  N. 
W.  974.  The  same  right  of  election  exists  upon  discovering  the 
name  of  the  principal  where  the  name  of  the  principal  hut  not 
the  existence  of  the  agency  is  undisclosed  at  the  time  of  making 
the  contract.  Raymond  v.  Crown  and  Eagle  Mills,  2  Mete.  (Mass.) 
319;  Merrill  v.  Kenyon,  48  Conn.  314,  40  Am.  Rep.  174. 

63  Kinsley  v.  Davis,  104  Mass.  178;  Berry  v.  Chase,  77  C.  C.  A. 
161,  146  Fed.  625. 

54  Cobb  V.  Knapp,  71  N.  Y.  348,  27  Am.  Rep.  51;  Steele-Smith 
Grocery  Co.  v.  Potthast,  109  Iowa,  413,  80  N.  W.  519;  Mussenden 
V.  Raiffe,  131  111.  App.  456;  Post,  §  109  (c).  An  action  of  attach- 
ment against  the  agent  has  been  held  conclusive  evidence  of  elec- 
tion to  hold  him.     Barrell  v.  Newby,  127  Fed.  656. 

55  Kinsley  v.  Davis.  104  Mass.  178.  Obtaining  judgment  will  not 
constitute  an  election  where  the  party  was  ignorant  of  the  prin- 


17i  THE  LAW  OF  AGENCY. 

ment  satisfied.^^  Under  these  rulings  it  would  seem  that 
an  indication,  by  the  third  party,  of  an  intention  to  hold 
the  agent  will  not  have  the  effect  of  an  irrevocable  election, 
and  hence  ^Yill  not  preclude  subsequent  resort  to  the  prin- 
cipal, unless  recovery  is  had  against  the  agent;  in  which 
event  the  obligation  of  the  contract  ceases,  or  unless  the 
principal,  acting  upon  the  appearance  of  an  election  to 
hold  the  agent,  changes  his  position  to  his  disadvantage. 
To  constitute  an  election  the  party  must  have  knowledge  of 
the  existence  of  the  agencjy,  and  must  also  know  who  is  the 
principal,  for  otherwise  he  would  be  unable  to  choose  be- 
tween principal  and  agent. °'^  Thus,  before  identification 
of  the  principal,  it  would  not  constitute  an  election  to  ac- 
cept the  agent's  note,^*  or  to  charge  goods  to  him  individ- 
ually.^'' 

(c)  Settlement  with  agent.  Where  a  third  party  sells 
goods  to  an  agent,  believing  him  to  b  ■  acting  in  his  own 
behalf,  but  subsequently  learns  that  1  ^  was  the  agent  of 
an  undisclosed  principal,  he  may,  as  has  been  indicated, 
elect  to  resort  to  the  principal,  on  the  contract,  for  the  price 

cipal's  existence  at  the  lime  of  bringing  suit.  Liudquist  v.  Diclc- 
son,  98  Minn.  3G9,  107  N.  W.  958. 

66  Beymer  v.  Bonsall,  79  Pa.  St.  298;  Maple  v.  Ry.  Co.,  40  Ohio 
St.  313,  48  Am.  Rep.  085. 

57  Merrill  v.  Kenyon,  4S  Conn.  314,  40  Am.  Rep.  174;  Greenbeig 
V.  Palmieri,  71  N.  J.  Law.  83,  58  Atl.  297. 

Bspentz  V.  Stanton,  10  Wend.  (N.  Y.)  271,  25  Am.  Rep.  558; 
Harper  v.  Bank,  54  Ohio  St.  425,  44  N.  E.  97;  Merrill  v.  Kenyon. 
48  Conn.  314,  40  Am.  Rep.  174.     - 

5»  Raymond  v.  Crown,  etc.,  Mills,  2  Mete.  (Mass.)  319;  French 
V.  Priro,  24  Pick.  (Mass.)  13;  Guest  v.  Burlington  Opera  Housp 
Co.,  74  Iowa,  457,  38  N.  W.  158;  McKee  v.  Cunningham,  2  Cal.  App. 
684,  84  Pac.  2C0. 

00  The  earlier  ruling  in  England  was  that  settlement  with  the 


FORM   OF    EXECUTION.  175 

of  the  goods.  But  if  in  the  meantime  the  principal,  in  good 
faith,  has  settled  for  the  goods  with  the  agent,  who  failed 
to  pay  over  the  money,  will  that  fact  constitute  a  defense, 
or  must  the  principal  settle  again  with  the  other  party? 
This  question,  though  infrequently  raised  in  Aiherica,  has 
been  the  source  of  much  interesting  discussion  in  the  Eng- 
lish cases,  which  have  answered  it  both  ways.®°  With- 
out entering  into  a  discussion  of  the  proposition,  it  may 
be  stated  as  the  better  rule  that  the  liability  of  an  undis- 
closed principal  can  not  be  defeated  by  a  settlement  with 
his  agent,  unless  such  settlement  was  induced  by  some  ac- 
tion of  the  other  contracting  party,  which  reasonably  led 
the  principal  to  believe  that  such  settlement  could  safely 
be  made ;  as  where  such  other  party,  with  knowledge  of  the 
agency,  accepted  the  agent's  personal  security,  or  otherwise 
indicated  that  he  was  looking  solely  to  the  agent,  or  had 
come  to  a  settlement  with  him.**^ 

On  principle  it  would  seem  that  the  rule  herein  laid 
down,  and  the  doctrine  of  election,  discussed  in  the  preced- 
ing subdivision,  are  so  closely  allied  as  to  warrant  statement 
in  a  single  formula; — namely,  that  the  liability  of  an  un- 
disclosed principal,  upon  a  contract,  continues  until  such 
obligation  has  been  met,  either  by  himself  or  by  the  agent; 

agent  would  constitute  a  defense.  Thomas  v.  Davenport,  9  B.  & 
C.  78.  This  holding  has  apparently  been  accepted  in  some  of  the 
American  cases.  Fradley  v.  Hyland,  37  Fed.  49;  Thomas  v.  At* 
kinson,  38  Ind.  248.  The  later  English  cases  support  the  doctrine 
that  settlement  with  the  agent  will  constitute  a  defense  only 
where  it  was  induced  by  conduct  of  the  other  party.  Irvine  v. 
Watson,  5  Q.  B.  D.  102. 

61  York  County  Bank  v.  Stein,  24  Md.  446;  Schepflin  v.  Dessar. 
20  Mo.  App.  569;  Hyde  v.  Wolf,  4  La.  234,  23  Am.  Dec.  484; 
Mechem  on  Agency,  §  697. 


176  THE  LAW  OF  AGENCY. 

or  until  the  other  contracting  party,  with  knowledge  of  the- 
principal's  identity,  has  by  some  indication  of  an  election 
to  hold  the  agent,  induced  the  principal  to  settle  with  the 
agent,  or  otherwise  to  change  his  position  to  his  disadvan- 
tage. In  short,  the  liability  of  an  undisclosed  principal 
continues  until  the  obligation  of  the  contract  has  been  met. 
or  until  the  other  contracting  party,  by  his  conduct,  is  es- 
topped to  assert  the  liability.^^ 

§  110.  Agent's  liability.  As  indicated  in  our  discufs- 
sion,  the  agent  of  an  undisclosed  principal  is  liable  on  the 
contract  at  the  option  of  the  other  contracting  party.  So. 
in  the  case  of  sealed  and  negotiable  instruments,  where  the 
agent  describes  himself  as  such,  but  the  execution  is  not 
technically  sufficient  to  bind  the  principal,  the  agent  will 
be  bound  if,  upon  its  face,  the  contract  can  be  construed 
as  his  personal  obligation.  In  this  chapter,  however,  wo 
have  been  concerned  solely  with  the  liability  of  the  princi 
pal,  and  shall  reserve  for  separate  discussion  the  question 
of  the  agent's  liability.*'^ 

62  Henry  Ames  Packing  Co.  v.  Tucker,  8  Mo.  App.  95;  Davis  v. 
McKinney,  46  Tenn.  15;  Rathl  one  v.  Tucker,  15  Wend.  (N.  Y.) 
498;  Beymer  v.  Bonsall,  79  Pa.  St.  298.  Where  the  party  knows 
the  principal  and  yet  chooses  to  talce  the  contract  of  the  agent  in- 
dividually, he  is  bound  by  his  election  and  cannot  afterward- 
hold  the  principal.     In  re  Bateman,  145  N.  Y.  623,  40  N.  E.  10. 

•sPost,  Chap.  XIII. 


CHj^PTER  XL 

ADMISSIONS— NOTICE— LIABILITY     OF     PRINCIPAL.     FOR 
TORTS  AND  CRIMES  OF  AGENT. 

'         f  111.  Scope  of  chapter. 

I.  Admissions. 

112.  In  general. 

113.  Admissions  by  agent* 

(a)  In  general. 

(b)  Authorized  statements. 

(c)  Statements  part  of  transaction. 

114.  Res  gestae. 

II.  Notioe. 

115.  In  general. 

116.  Notice  to  agent 

^  (a)    In  general, 
(b)   Exceptions  to  rule. 

III.  Principal's  liability  for  tort  of  a^ent. 

117.  In  general. 

118.  Master  and  servant. 

119.  Principal  and  agent. 

120.  Fraud. 

(a)  In  general. 

(b)  Not  for  principal's  benefit. 

IV.  PrindpaVs  liaMlity  for  agent's  crimes. 

121.  In  general. 

122.  Assent  of  principal. 

(a)  In  general. 

(b)  Statutory  offenses. 

§  111.  Scope  of  chapter.  In  this  chapter,  we  shall  dis- 
cuss the  legal  effect  upon  a  principal  of  notice  to  his  agent, 
and  of  admissions  made  by  an  agent  in  the  performance 

of  his  agency.     Also,  the  liability  of  a  principal  for  torts. 

12 


178  THE  LAW  OF  AGENCY. 

and  crimes  committed  by  his  agent.  The  determination  of 
these  questions  merely  involves  an  application  to  different 
sets  of  facts  of  the  principles  of  agency  already  discussed. 
Some  knowledge,  on  the  part  of  the  student,  of  the  doctrine 
of  notice  and  admissions,  as  well  as  of  the  law  of  crimes 
and  torts,  must,  perforce,  be  assumed. 

I.  Admissio^is. 

§  112.  In  general.  It  is  a  rule  of  the  law  of  evidence 
that  statements  of  fact,  material  to  the  issue,  made  by  a 
party  to  an  action,  and  adverse  to  his  interest,  may  be  in- 
troduced in  evidence  against  him.^  The  question  with 
which  we  are  concerned  is  whether  a  statement  made  by  an 
agent  may  be  so  far  deemed  the  statement  of  the  principal 
as  to  allow  its  introduction  in  evidence  against  the  princi- 
pal, where  it  would  have  been  admissible,  as  an  admission 
if  made  by  the  principal  himself. 

§  113.  Admissions  by  agent,  (a)  In  general.  Just  as 
an  act  performed  by  an  agent,  within  the  scope  of  his  au- 
thority, and  in  execution  of  it,  is  deemed  the  act  of  the  prin- 
cipal, and  is  binding  upon  him ;  so,  a  statement  made  by 
an  agent,  within  the  scope  of  his  agency,  and  in  furtherance 
of  it,  is  deemed  the  statement  of  the  principal,  and  may  be 
u.sed  against  him.^  This,  of  course,  does  not  mean  that  all 
statements  made  by  an  agent,  while  engaged  in  perform- 

1  Jones  on  Evidence,  Chap.  IX. 

zVicksburg,  etc.,  Ry.  v.  O'Brien,  119  U.  S.  99;  Western  Mining 
Co.  V.  Toole,  2  Ariz.  82,  11  Pac.  119;  Ferguson  v.  Hamilton,  35 
Barb.  (N.  Y.)  427;  White  v.  Miller,  71  N.  Y.  134,  27  Am.  Rep.  13; 
Wilson  Sewing  Mach.  Co.  v.  Sloan,  50  Iowa,  307.  Where  the  acts 
of  the  agent  will  bind  the  principal,  his  representations,  respect- 
ing the  subject  matter,  made  while  he  Is  transacting  the  business 
and  exercising  his  authority,  will  also  bind  the  principal.  Hart- 
ford Ins.  Co.  V.  Sherman,  223  111.  329,  78  N.  B.  923. 


ADMISSION — NOTICE — LIABILITY    OF    PKlNCirAL.  171) 

ance  of  his  agency,  are  statements  of  his  principal.  The 
statements  must  be  of  a  character  such  as  the  agent,  in  the 
performance  of  his  duty,  is  authorized  to  make;  or  it  must 
be  so  closely  connected  with,  and  in  furtherance  of,  some 
authorized  transaction  as  to  be  practically  a  part  of  such 
transaction, — or,  as  frequently  put,  part  of  the  res  gestae.^ 
(b)  Authorized  statements.  It  may  frequently  be  in 
the  line  of  an  agent's  duty  to  impart  information,  or  to 
make  statements  of  fact,  within  his  knowledge;  and  while 
in  performance  of  such  duty,  his  statements  are  clearly 
binding  on  his  principal,  notwithstanding  that  they  sub- 
sequently may  prove  prejudicial  to  the  interest  of  the  prin- 
cipal. Thus,  where  a  person  refers  another  to  a.n  agent  for 
information  upon  a  particular  matter,  the  statement  of 
such  agent,  in  reference  thereto,  may  be  introduced  as  an 
admission  against  the  principal.*  So,  where  it  was  the  duty 
of  a  station  master  to  deliver  baggage  to  passengers,  or  to 
account  for  the  same,  a  statement  by  such  official,  in  ac- 
counting for  the  loss  of  a  trunk,  made  shortly  thereafter, 
and  in  the  line  of  his  duty,  would  be  admissible  against  the 
railway  company.^     And,  in  an  English  case,  where  a  par- 

su.  S.  V.  Gooding,  12  Wheat.  (U.  S.)  460;  Thallhimer  v.  Brin- 
kerhoff,  4  Wend.  (N.  Y.)  394,  21  Am.  Dec.  155;  Marshall  v.  Haney, 
4  Md.  498,  59  Am.  Dec.  92;  Converse  v.  Blumrich,  14  Mich.  109, 
90  Am.  Dec.  230;  Fogg  v.  Pew,  10  Gray  (Mass.).  409,  71  Am.  Dec. 
662;  McPherrin  v.  Jennings,  66  Iowa,  622,  24  N.  W.  242;  Nat.  Bldg. 
Assn.  V.  Quin,  120  Ga.  358,  47  S.  E.  962.  Under  authority  to  settle 
with  a  debtor,  threats  of  unlawful  imprisonment,  made  to  pio- 
cure  a  settlement,  are  within  the  scope  of  such  agent's  authority. 
Mitchell  V.  Finnell,  101  Gal.  614,  36  Pac.  123. 

4  Chapman  v.  Twitchell.  37  Me.  59,  58  Am.  Dec.  773;  Over  v. 
Schifflin,  102  Ind.  191,  26  N.  E.  91;  Proctor  v.  Ry.  Co.,  154  Mass. 
251,  28  N.  E.  13. 

5  Morse  v.  Ry.  Co.,  6  Gray  (Mass.),  450:  Lane  v.  Ry.  Co.,  112 
.Mass.  455;  Nichols  v.  So.  Pac.  Ry.  Co.,  23  Ore.  123.    Railway  com- 


180       •  THE  LAW  OF  AGENCY. 

eel  was  lost  in  transit,  and  a  station  master,  in  tlie  course 
of  his  duty,  gave  information  to  the  police  as  to  the  ab- 
sconding of  a  porter,  suspected  of  taking  it,  his  statements 
Avere  held  admissible  against  the  company,  on  the  issue  as 
to  whether  the  parcel  was  stolen  by  one  of  its  servants.* 
And,  so.  In  an  action  against  a  railway  for  damages  result- 
ing from  an  accident  caused  by  spreading  rails,  it  was  held 
that  a  statement,  as  to  the  condition  of  the  rails,  made 
shortly  before  the  accident,  to  a  superior  officer,  by  the 
track  walker,  in  the  course  of  his  duty,  was  admissible 
against  the  company.^ 

(c)  Statements  part  of  transaction.  Though  resting  on 
the  same  principle,  we  may  put  into  a  different  class  those 
cases  in  which  statements  of  an  agent  are  admitted  against 
the  principal  because  made  by  the  agent  in  furtherance  of 
some  authorized  transaction.  Here,  it  is  necessary  that  th'':' 
statements  be  so  closely  connected  with  the  act  performed. 
or  the  contract  made,  as  to  be  a  part  of  the  transaction, — 
part  of  the  res  gestae, — and,  consequently,  statements  made 
independently  of  the  transaction,  and  not  in  furtherance 
of  it,  or  after  its  completion,  would  not  be  admissible  against 

panies  are  not  responsible  for  declarations  or  admissions  of  any 
of  their  servants  beyond  the  immediate  sphere  of  their  agency 
and  during  the  transaction  of  the  business  in  which  they  are  em 
ployed.    Missouri  Pac.  Ry.  Co.  v.  Stults,  31  Kan.  752,  3  Pac.  522. 

0  Kirkstall  Brewing  Co.  v.  Furness  Ry.  Co  ,  L.  R.,  9  Q.  B.  468. 

7  Texas  &  P.  Ry.  Co.  v.  Lester,  75  Tex.  56,  12  S.  W.  955.  Se  ■ 
Keyser  v.  Railway  Co.,  C6  Mich.  390,  33  N.  W.  8G7;  Meyer  v. 
Insurance  Co.,  104  Cal.  3S1,  38  Pac.  82;  North  Hudson  Ry.  Co.  v. 
May,  48  N.  J.  I.a,w.  401,  5  Atl.  276.  Where  an  attorney  is  emi)loy(  (i 
to  enforce  a  claim  for  damages  against  a  railway  company,  and 
to  obtain  a  settlement,  if  possible,  without  suit,  a  letter  written 
by  him  to  the  company,  stating  what  purports  to  be  the  facts  ii 
the  case.  In  response  to  an  inquiry  by  the  company.  Is  admissible 


ADMISSION — NOTICE — LIABILITY    OF    PRINCIPAL.  181 

the  principal.^  Tims,  in  an  action  for  purchase  money, 
statements  of  vendor's  agent,  made  during  negotiation  of 
the  sale,  may  be  shown ;  ®  and  in  an  action  for  refusing  to 
accept  merchandise  sold,  declarations  of  defendant's  agent, 
while  weighing  and  receiving  the  goods,  as  to  their  quantity 
or  quality,  would  be  admissible.^"  So,  the  statement  of  an 
officer  of  a  corporation,  respecting  a  transaction  in  con- 
troversy, would  be  admissible  against  the  company,  if  made 
while  the  transaction  was  in  progress,  notwithstanding  that 
it  extended  over  a  considerable  period  of  time.^^  And  in  an 
action  to  recover  a  statutory  penalty  for  selling  coal  short 
measure,  it  was  held,  in  an  English  case,  that  statements 
by  defendant's  agent,  who  made  the  sale,  in  reference  there- 
to, and  as  part  of  the  transaction,  were  admissible  in  evi- 
dence.^- So  upon  the  trial  of  the  owner  of  a  vessel  for 
engaging  in  the  slave  trade,  statements  by  the  master  of 
the  ship,  that  the  voyage  was  for  that  purpose,  were  admis- 
sible against  the  defendant,  where  made  to  a  person  whom 
the  master  in  pursuance  of  authority,  was  seeking  to  em- 
ploy as  mate  for  the  voyage,  which  was  then  in  progress.^'' 
But  on  the  other  hand,  statements  by  an  agent  concerning 

against  the  client.  Loomis  v.  Ry.  Co.,  159  Mass.  39,  34  N.  E.  82. 
See  Fletcher  v.  Ry.  Co.,  109  Mich.  363,  67  N.  W.  330. 

s  White  V.  Miller,  71  N.  Y.  134,  27  Am.  Rep.  13;  Phelps  v.  James, 
S6  Iowa,  398,  53  N.  W.  274;  Idaho  Porwading  Co.  v.  Insurance  Co.. 
8  Utah,  41,  29  Pac.  826;  Luby  v.  Railway  Co.,  17  N.  Y.  131;  Rand- 
all V.  Northwestern  Tel.  Co.,  54  Wis.  140,  41  Am.  Rep.  17;  Brooks 
V.  Jameson,  55  Mo.  505. 

9  Wiggins  V.  Leonard,  9  Iowa,  194;  Hammatt  v.  Emerson,  27  Me. 
308,  46  Am.  Dec.  598. 

10  Rahm  V.  Deig,  121  Ind.  283. 

iiXenia  Bank  v.  Stewart,  114  U.  S.  224;    Hamilton  Buggy  Co. 
V.  Iowa  Buggy  Co.,  88  Iowa,  364. 
12  Peto  V.  Hague,  5  Esp.  134. 
13 United  States  v.  Gooding,  12  Wheat.  (U.  S.)  460. 


182  THE  LAW  OF  AGENCY. 

completed  transactions  wonld  be  inadmissible  against  the 
principal ;  ^*  and,  thus,  statements  by  the  president  of  a 
corporation,  as  to  his  company's  former  dealings,  which 
statements  were  not  made  in  performance  of  his  duties,  or 
in  transaction  of  business  contemporaneous  with  them, 
would  not  be  binding  upon  the  corporation." 

§  114.  Res  gestae.  The  rules  under  discussion  form  a 
part  of  the  law  of  evidence,  and  hence  we  find  them  stated, 
in  many  cases,  in  the  terms  of  that  branch  of  the  law. 
Thus,  it  is  generally  laid  down  that  statements  of  an  agent 
are  admissible  because  they  form  part  of  the  res  gestae, 
without  the  further  explanation  that,  being  part  of  the  res 
gestae,  they  may  be  deemed  authorized  statements,  and  for 
that  reason  binding  on  the  principal. ^^  The  res  gesiae 
doctrine,  briefly,  is  that  declarations,  contemporaneous  with 
some  transaction,  or  with  the  happening  of  some  event,  and 
in  explanation  thereof,  made  so  spontaneously  as  to  pre- 
clude the  idea  of  premeditation,  may  be  considered  part 
of  the  circumstances  that  surround  such  act  or  event,  and 
as  such,  may  be  introduced  in  evidence  as  part  of  the  ad 
or  event  itself,- — part  of  the  res  gestae.^''     Applying  tlii> 

14  Northwestern  Packet  Co.  v.  Clough,  20  Wall.  (U.  S.)  528; 
Fort  Smith  Oil  Co.  v.  Slover,  58  Ark.  168,  24  S.  W.  106;  Ruschen- 
berg  V.  Southern  Electric  Ry.  Co.,  161  Mo.  70,  61  S.  W.  626;  Vicks- 
burg  Ry.  Co.  v.  O'Brien,  119  U.  S.  99.  Thus,  a  conversation  be- 
tween agents  of  a  railway  company,  concerning  a  past  transac- 
tion, Is  clearly  inadmissible  against  the  company.  Union  Pac. 
Ry.  Co.  V.  Fray,  35  Kan.  700;  Erie,  etc..  Ry.  Co.  v.  Smith,  125  Pa. 
St.  259. 

!•'  Ricketts  v.  Birmingham  St.  Ry.  Co.,  85  Ala.  600;  Goetz  v. 
Bank,  119  U.  S.  551. 

10  United  States  v.  Gooding,  12  Wheat.  (U.  S.)  460;  1  Greenl. 
Evidence,  §  113. 

17  .Tones  on   Evidence,  Chap.  II. 


ADMISSION NOTICE — LIABILITY    OP    PRINCIPAL.  183 

doctrine  to  the  question  of  the  admissibility  of  agents' 
statements,  many  of  the  courts  reason  that,  the  authority 
of  an  agent  to  perform  an  act,  or  to  negotiate  a  contract, 
being  established  statements  made  by  the  agent,  in  the 
course  of  the  performance  of  his  agency,  and  in  relation 
thereto,  constitute  part  of  such  performance;  and  since 
what  the  agent  did,  is  admissible  in  evidence,  what  he  said 
while  doing  it,  may  also  be  introduced  if  it  elucidates  the 
act,  is  contemporaneous  with  it,  is  part,  in  short,  of  the  act 
itself." 

Basing  the  admissibility  of  an  agent's  statements  upon 
the  rule  of  res  gestae  is  less  satisfactory  than  resting  it 
squarely  upon  the  doctrine  that  where  an  agent  is  author- 
ized to  negotiate  a  transaction,  he  acts  within  the  scope  of 
his  authority  in  making  statements  connected  therewith, 
and  in  furtherance  thereof,  and  hence  binds  his  principal 
by  them.  It  also  tends  to  confusion.  In  many  cases,  dec- 
larations of  an  agent  or  employee  are  admissible  against 
the  principal  on  the  ground  of  res  gestae,  where  the  fact 
of  his  being  an  agent  is  immaterial,  and  the  same  statements 
would  be  admissible  though  made  by  a  stranger.  Thus,  in 
the  case  of  a  railway  accident,  declarations  by  a  trainman, 
made  spontaneously,  immediately  thereafter,  as  to  the  cause 
of  the  accident,  would  be  admissible  against  the  company; 
not  because  of  the  relation  existing  between  him  and  the 
company,  nor  because  of  any  authority  to  speak  in  behalf 
of  the  company,  but  because  the  declarations  were  part  of 
the  res  gestae}^     Like  declarations  by  a  passenger,  who  was 

18  Texas  &  P.  Ry.  Co.  v.  Lester,  75  Tex.  56,  12  S.  W.  955;  Keyser 
V.  Chicago,  etc.,  Ry.  Co.,  66  Mich.  390,  33  N.  W.  867;  Story  on 
Agency,  §  134. 

i»  Ohio,  etc.,  Ry.  Co.  v.  Stein,  133  Ind.  243,  31  N.  E.  180,  19  L. 
R.  A.  733.     "If  the  declarations  were  part  of  the  res  gestae,  they 


184  THE  LAW  OF  AGENCY. 

injured,  though  they  were  beneficial  to  himself,  would,  on 
the  same  ground,  be  admissible  in  an  action  brought  by  him 
against  the  company.-"  It  is  clear  that  the  statements  of  a 
vendor's  agent,  for  instance,  made  during  negotiation  of  a 
sale,  are  admissible  on  essentially  different  grounds  from 
those  justifying  the  introduction  of  the  declarations  of  the 
trainman  or  the  passenger  in  the  cases  last  cited.  In  the 
one  case  the  admissibility  depends  on  existence  of  author- 
ity in  an  agent  to  bind  his  principal  by  acts  and  words;  in 
the  other  cases,  agency  is  not  involved,  but  under  the  rules 
of  e\adence  the  declarations,  by  whomsoever  made,  are  o4- 
missible  because  they  constitute  part  of  the  concurrence  in 
controversy^  It  only  leads  to  confusion  to  say  that  in  all 
three  cases,  the  declarations,  in  question,  are  admitted  upon 
the  same  ground,  namely  because  part  of  the  res  gestae. 
Hence,  we  have  stated  the  rules,  governing  admission  of 
agents'  statements,  in  the  terms  of  agency,  and  have  based 
their  admissibility  against  the  principal  on  the  ground 
that  being  made  within  the  scope  of  the  agent's  authority 
they  are  binding  upon  the  principal  because  in  legal  effect 
his  statements. 

II.  Notice. 

\  §  115.  In  general.  It  is,  in  brief,  a  doctrine  of  equity 
jurisprudence  that  a  person  who  acquires  a  title  or  interest 
in  a  given  subject  matter,  which  is  already  affected  by  an 
equitable  claim  or  interest  in  favor  of  another,  will  take 
subject  to  the  same,  provided,  that  at  the  time  he  had  notice, 

were  competent,  no  matter  by  whom  they  were  made."  Elliott, 
C.J. 

20  In  an  action  by  an  administrator  against  a  railway  company 
for  damages  for  decedent's  death,  declarations  of  decedent,  made 
Immediately  after  he  was  injured,  and  while  he  was  being  extri- 
cated from  iindnr  the  whoels  of  the  car,  were  admissible  against 


ADMISSION — NOTICE — LIABILITY    OP    PRINCIPAL.  185 

actual  or  constructive,  of  such  adverse  claim  or  interest.^^ 
The  question  with  which  we  are  here  concerned  is  whether 
notice  to  an  agent  may  be  imputed  to  his  principal,  so  as  to 
affect  the  latter 's  rights  the  same  as  they  would  have  been 
affected  had  he  himself  had  notice. 

§  116.  Notice  to  agent,  (a)  In  general.  Where  notice 
of  an  adverse  interest  or  claim  is  acquired  by  an  agent  dur- 
ing negotiation,  for  his  principal,  of  the  transaction  affected 
by  the  notice,  there  can  be  no  doubt  but  that  such  notice 
will  be  imputed  to  the  principal ;  ^-  either  upon  the  broad 
ground  of  the  legal  identity  of  principal  and  agent ;  -'  or 
upon  the  theory  of  the  agent's  duty  to  communicate  to  his 
principal  knowledge  of  facts  which  affect  the  transaction.-* 
Where,  however,  notice  had  been  acquired  by  the  agent 
in  a  previous  or  different  transaction,  some  of  the  cases 

the  defendant,  as  part  of  the  res  gestae.  Louisville,  etc.,  Ry.  CJo. 
V.  Buck,  116  Ind.  566,  19  N.  E.  453,  2  L.  R.  A.  520. 

21  Pomeroy  on  Equity-,  §  591. 

22  Suit  V.  Woodhall,  113  Mass.  391;  Campau  v.  Konan,  39  Mich. 
362;  Pacific  Lumber  Co.  v.  Wilson,  6  Cal.  App.  561,  92  Pac.  654; 
Connelly's  Ex'r  v.  Beckett,  32  Ky.  Law  Rep.  356,  105  S.  W.  446; 
Jacquith  v.  Davenport,  191  Mass.  415,  78  N.  B.  93.  Notice  to  an 
agent,  who  purchases  a  note  that  is  tainted  with  usury  is  notice 
to  his  principal.    Haynes  v.  Gay,  37  Wash.  230,  79  Pac.  794. 

23  Irvine  v.  Grady,  85  Tex.  120,  19  S.  W.  1028;  Advertiser 
Tribune  Co.,  v.  Detroit,  43  Mich.  116. 

24  The  Distilled  Spirits,  11  Wall.  (U.  S.)  356;  Pringle  v.  Modern 
Woodmen  of  America,  76  Neb.  384,  107  N.  W.  756.  It  is  pre- 
sumed that  agents  will  communicate  to  their  principals  facts  ma- 
terial to  the  principal's  interests;  and  their  knowledge,  therefore, 
becomes  the  knowledge  of  the  principal.  Traders'  &  Truckers' 
Bank  v.  Black,  108  Va.  59,  60  S.  E.  743. 

25  Houseman  v.  Association,  81  Pa.  St.  256;  Barbour  v.  Wiehle, 
116  Pa.  St.  308,  9  Atl.  520;  McCormick  v.  Joseph.  83  Ala.  401,  3 
South.  796. 


186  THE  LAW  OF  AGENCY. 

have  held  that  such  notice  could  not  be  imputed  to  the 
principal;  since  notice  acquired  before  the  relation  existed 
would  amount  to  no  more  than  notice  acquired  after  it  had 
ceased.^'  It  seems  now  the  accepted  rule  that  actual  infor- 
mation acquired  by  an  agent  prior  to  the  agency,  but  pres- 
ent in  his  mind  while  acting  for  the  principal,  and  material 
to  the  business  delegated,  will  be  deemed  notice  to  the  prin- 
cipal.^^ It  would  be  necessary  to  establish,  by  at  least  pre- 
sumptive evidence,  that  the  information  acquired  by  the 
agent  in  a  preAnous  transaction  was  present  to  his  mind 
and  memoiy  while  engaged  in  the  subsequent  business  for 
his  prineipal.^^ 

(b)  Exceptions  to  rule.  Two  exceptions  to  the  doc- 
trine imder  discussion  are  to  be  noted.  It  is  generally 
held  that  knowledge  possessed  by  an  agent  will  not  be  im- 
puted to  his  principal,  where  it  was  acquired  by  the  former, 
confidentially,  as  attorney  for  another,  so  that  its  disclosure 
would  involve  a  breach  of  professional  secrecy.-^  So,  where 
an  agent  in  the  course  of  liis  employment,  for  his  own  bene- 
fit, perpetrates  a  fraud  upon  the  principal,  and  such  fraud 

20  The  Distilled  Spirits,  11  Wall.  (U.  S.)  356;  Fairfield  Sav. 
Bank  v.  Chase,  72  IVfe.  226,  39  Am.  Rep.  319;  Constant  v.  Uni- 
versity, 111  N.  Y.  604,  19  N.  E.  631;  Schwind  v.  Boyce,  94  Md.  510, 
51  Atl.  45;  Henry  v.  Omaha  Packing  Co.  (Neb.),  115  N.  W.  777; 
Vulran  Detinning  Co.  v.  American  Can  Co.  (N.  J.  Eq.),  67  Atl.  339. 

27  St.  Paul  Fire,  etc.,  Ins.  Co.  v.  Parsons,  47  Minn.  352,  50  N.  W. 
240;  Constant  v.  University,  111  N.  Y.  604,  19  N.  E.  631;  Yerger  v. 
Barz,  56  Iowa,  77,  8  N.  W.  769;  Merchants'  Nat.  Bank  v.  Nichols, 
223  111.  41,  79  N.  E.  38.  It  would  be  sufficient  to  show  that  the 
information  was  acquired  so  recently  as  necessarily  to  raise  the 
inference  that  it  remained  fixed  in  the  agent's  memory.  Chouteau 
V.  Allen,  70  Mo.  290;  Brothers  v.  Bank,  84  Wis.  381,  54  N.  W.  78G. 

28  The  Distilled  Spirits,  11  Wall.  (U.  S.)  367;  Abell  v.  Howe,  43" 
Vt.  403;  McCormifk  v.  Wheeler,  36  111.  114,  85  Am.  Deo.  388; 
Haven  v.  Snow,  14  Pick.  (Mass.)  28;  Constant  v.  University,  111 
N.  Y.  004.  19  N.  E.  631 


ADMISSION — NOTICE — LIABILITY    OF    PRINCIPAL.  187 

involves  the  necessity  of  concealing  facts  from  him,  notice 
of  the  facts,  thus  fraudulently  concealed,  will  not  be  im- 
puted to  the  principal. ^'^ 

III.  Principal's  Liahility  for  Tort  of  Agent. 

§  117.  In  general.  A  person  is  liable  in  damages  for 
his  torts  whether  committed  personally  or  by  the  hand  of 
an  agent  ;^°  and,  as  we  have  seen,  this  liability  may  arise 
from  ratification,  as  well  as  from  precedent  authorization, 
of  a  wrongful  act  done  by  one  person  in  behalf  of  another.^^ 
So,  even  in  cases  where  authorization  of  a  wrongful  act 
can  not  be  sho^^^l,  liability  may  arise,  within  prescribed  lim- 
its, from  the  existence  between  two  persons  of  such  a  relation 
as  to  make  one  responsible  for  the  acts  of  the  other.^^ 

§  118.  Master  and  servant.  Broadly  stated,  a  master  is 
liable  not  only  for  such  torts  of  his  servant  as  he  may  be 
said  to  have  authorized,  but  also  for  wrongful  acts,  unau- 

29  Innerarity  v.  Merchants'  Nat.  Bank,  139  Mass.  332,  1  N.  E. 
282;  American  Surety  Co.  v.  Pauly,  170  U.  S.  133;  Allen  v.  Rail- 
way Co.,  150  Mass.  200,  22  N.  E.  917;  Traders'  &  Truckers'  Bank 
V.  Black,  108  Va.  59,  60  S.  E.  743;  Sebald  v.  Citizens'  Bank, 
31  Ky.  Law  Rep.  1244,  105  S.  W.  130.  Notice  to  an  agent  is 
not  imputed  to  his  principal,  where  the  presumption  that  the 
agent  will  communicate  his  knowledge  is  rebutted  by  the  fact  of 
his  adverse  interest.    Booker  v.  Booker,  208  111.  529,  70  N.  E.  709. 

30  Cooley  on  Torts,  Chap.  XVIII. 

31  Dempsey  v.  Chambers,  154  Mass.  330,  28  N.  E.  279;  Ante  § 
54  (c). 

32  Hearns  v.  Waterbury  Hospital,  66  Conn.  98,  33  Atl.  595.  "The 
rule  is  obviously  founded  on  the  great  principle  of  social  duty, 
that  every  man  in  the  management  of  his  own  affairs,  whether  by 
himself  or  his  agents  or  servants,  shall  so  conduct  them  as  not 
to  injure  another;  and  if  he  does  not,  and  another  thereby  sus- 
tains damage,  he  shall  answer  for  it."  Farwell  v.  Railroad  Corp., 
4  Mete.  (Mass.)  49,  38  Am.  Dec.  339. 


188  THE  LAW  OF  AGENCY. 

thorized,  or  even  expressly  forbidden,  but  committed  by 
the  servant  within  the  scope  of  his  employment  and  in  fur- 
therance of  it.^^  Thus,  if  a  servant,  employed  to  drive  a 
wagon,  is  guilty  of  negligence  in  driving  at  a  high  rate  of 
speed,  the  master  would  be  liable,  notwithstanding  that  he 
had  ordered  the  servant  to  drive  slowly,  provided,  of  course, 
that  at  the  time,  the  servant,  in  a  general  way,  was  engaged 
in  the  master's  business."* 

§  119.  Principal  and  agent.  The  liability  of  a  prinei 
pal  for  his  agent's  torts  is  deemed,  on  principle,  the  same 
as  that  of  a  master  for  his  servant 's  wrongs ;  but  in  most 
of  the  cases  cited  to  establish  a  principal's  liability,  the 
relation  existing  is  really  that  of  master  and  servant."' 
The  scope  of  an  agent's  authority  is  necessarily  so  very 
narrow,  compared  to  the  scope  of  a  servant's  employment, 
fhat  even  though  the  liability  be  the  same,  a  principal  much 
less  frequently  can  be  deemed  responsible  for  his  agent's 
wrongful  acts  than  can  a  master  for  the  torts  of  his  serv- 
ant.^^     Where  a  principal  authorizes  the  commission  of  a 

33  Railway  Co.  v.  Hackett,  58  Ark.  381,  24  S.  W.  881;  Potulni  v 
Saunders,  37  Minn.  517,  35  N.  W.  379. 

84  Staples  V.  Schniid,  18  R.  I.  224,  26  Atl.  193;  Ritchie  v.  Waller, 
63  Conn.  155,  28  Atl.  29;  Harriman  v.  Railway  Co.,  45  Ohio  St.  11. 
12  N.  E.  451. 

3s  Singer  Mfg.  Co.  v.  Rahn.  132  U.  S.  518,  10  Sup.  Ct.  175;  Mul- 
vehill  V.  Bates,  31  Minn.  364,  17  N.  W.  959;  Owensl)oro  Wagon  Co. 
V.  Doling,  32  Ky.  Law  Rep.  816,  107  S.  W.  2G4;  Barree  v.  Cape 
Girardeau,  197  Mo.  382,  95  S.  W.  330. 

80  Using  the  term  in  its  strictest  sense,  an  agent  Is  employed  to 
bring  his  principal  Into  business  or  contractual  relations  with 
others;  few  tortious  acts  would  come  within  the  scope  of  such 
employment.  Frofpiontly  an  agent's  duties  broaden  into  those  of 
a  Rfrvant,  as  wh(M'e  a  person  oniployod  to  sell  goods  is  intnistf';' 
wiHi  a  w;ij;oii  to  drive  fioin  house  to  house.     Here  (he  oiiiployer'.-, 


ADMISSION — NOTICE — LIABH^ITY    OF    PRINCJriVL.  189 

fraud  or  other  tort  by  his  agent,  or  ratifies  the  same  after 
commission,  the  wrongful  act  is  his,  and  he  clearly  is  liable 
therefor.^^  So,  if  in  the  performance  of  an  agency,  and  in 
furtherance  thereof,  a  tort  is  committed,  incident  to  such 
performance,  the  wrong  may  be  deemed  the  act  of  the  prin- 
cipal.^* Thus,  where  a  clerk  in  a  store  negligently  dis- 
charges a  gun,  which  he  is  selling,  the  principal  would  be 
liable  for  resulting  damages.^^  Where  it  was  part  <3f  the 
duty  of  a  ticket  agent,  in  a  general  passenger  office,  to  post 
notices  pertaining  to  business  therein  conducted,  and  such 
agent  posted  an  extract  from  a  newspaper,  which  consti- 
tuted a  libel  upon  a  neighboring  ticket  broker,  it  was  held 
that  the  company  was  liable.*"  And  the  ruling  was  the 
same  where  a  ticket  agent,  believing  that  a  spurious  bill 
had  been  passed  upon  him  in  exchange  for  a  ticket  and 
good  money  in  change,  wrongfully  caused  the  purchaser's 
arrest.*^     So,  where  an  attorney  in  the  conduct  of  a  suit 

liability  broadens  correspondingly.  See  Singer  Mfg.  Co.  v.  Rahn, 
132  U.  S.  518. 

3T  State  V.  Smith,  78  Me.  260,  57  Am.  Rep.  802;  Harrington  v. 
Hall  (Del.),  63  Atl.  875;  Dempsey  v.  Chambers,  154  Mass.  330,  28 
N.  E.  279. 

38  Allen  V.  Publishing  Co.,  81  Wis.  120,  50  N.  W.  1093;  Turner  v. 
Insurance  Co.,  55  Mich.  236,  21  N.  W.  326;  Grand  Rapids,  etc.,  Ry. 
Co.  V.  King,  41  Ind.  App.  701,  83  N.  E.  778;  Lewis  v.  Amorous,  3 
Ga.  App.  50,  59  S.  E.  338.  Where  a  mortgagee  directs  an  agent 
to  make  seizure  of  property  under  a  chattel  mortgage,  he  is  liable 
for  misconduct  of  the  agent  in  making  the  seizure.  Williams  v. 
Tolbert,  76  S.  C.  211,  56  S.  E.  908. 

39  Garretzen  v.  Duenkel,  50  Mo.  104,  11  Am.  Rep.  405. 

40  Fogg  V.  Railway,  148  Mass.  513,  20  N.  E.  109.  See  Pennsyl- 
vania Iron  Works  v.  Henry  Voght  Mach.  Co.,  29  Ky.  Law  Rep. 
^61,  96  S.  W.  551;  Hoboken  Printing  Co.  v.  Kahn.  59  N.  J.  Law, 
ns,  35  Atl.  1053;  Singer  Mfg.  Co.  v.  Taylor,  150  Ala.  574,  43  South. 
210. 

*i  Palmeri  v.  Railway  Co.,  133  N.  Y.  261,  30  N.  E.  1001.     But,  if 


190  THE  LAW  OF  AGENCY. 

wrongfully  causes  a  seizure  of  property,  the  client  would  be 
liable  in  damages.*^ 

§  120.  Fraud,  (a)  In  general.  Since  tlie  purpose  of 
most  agencies  is  to  bring  the  principal  into  contractual  re- 
lations with  third  persons,  the  liability  of  a  principal  for 
tort  of  an  agent  usually  arises  in  cases  where  the  agent 
practiced  fraud  in  negotiating  a  contract.  It  is  clear  that 
where  a  principal  authorizes  the  fraud,  as  where  he  directs 
his  agent  to  make  false  representations,  the  fraud  is  his. 
and  he  is  liable.  But  the  liability  will  arise,  though  th;^ 
principal  be  innocent,  where  the  agent,  in  practicing  the 
fraud,  acted  within  the  scope  of  his  employment,  and  in 
furtherance  of  it.  or,  to  use  terms  of  agency,  where  he  acted 
within  the  scope  of  his  authority,  real  or  apparent.*^  Thus, 
where  an  agent  authorized  to  sell  property  makes  false  rep- 
resentations concerning  the  same,  for  the  purpose  of  induc- 
ing a  person  to  buy,  (lie  principal  is  liable  for  the  fraud. ^^ 

the  agent,  from  a  sense  of  public  duty,  accepts  what  he  believes 
to  be  counterfeit  money  in  order  to  cause  the  arrest,  he  is  not 
acting  in  furtherance  of  his  employment,  and  the  company  is 
not  liable.  Mulligan  v.  Railway,  120  N.  Y.  506,  29  N.  E.  952.  See 
Larson  v.  Association,  71  Minn.  lOl,  73  N.  W.  711. 

*2  Foster  v.  Wiley,  27  Mich.  245,  15  Am.  Rep.  185.  "A  client 
who  puts  his  claim  into  the  hands  of  an  attorney  for  suit  is  pre- 
sumed to  authorize  such  action  as  the  latter  in  his  superior 
knowledge  of  law  may  decide  to  be  legal."    Cooley,  J. 

43Griswold  V.  Plaven,  25  N.  Y.  595,  82  Am.  Dec.  380;  Yeoman  v. 
McClenahan,  190  N.  Y.  121,  82  N.  E.  108G;  Griswold  v.  Gebbie,  126 
Pa.  St.  353,  17  Atl.  073;  Gate  v.  Blodgett,  70  N.  H.  316,  48  Atl.  281. 

"Jeffrey  v.  Bigelow,  13  Wend.  (N.  Y.)  518,  28  Am.  Dec.  476; 
Haskell  v.  Starbird,  152  Mass.  117,  25  N.  E.  14;  Kendrlck  v.  Col- 
yar,  143  Ala.  597,  42  South.  110;  Millard  v.  Smith,  119  Mo.  App. 
701.  95  S.  W.  940;  Tlojjkins  v.  Insurance  Co.,  57  Iowa.  203,  10  N. 
W.  605.  Some  of  the  cases  hold  that  an  action  for  deceit  will  not 
lie  against  an  Innocont  prlnripal.     Kennedy  v.  McKay.  45  N.  J. 


ADMISSION — NOTICE — LIABILITY    OP    PRINCIPAL.  191 

The  agent  is  presumed  to  possess  authority  to  make  such 
epresentations  as  usually  accompany  such  transactions  as 
!hat  in  which  he  is  engaged;*^  and,  furthermore,  having 
given  an  agent  authority,  "the  principal  is  responsible  for 
the  fraudulent,  as  well  as  the  fair,  means  used  by  the  agent, 
if  they  are  in  the  Hue  of  accomplishing  the  object  of  the 
agency. "  ** 

(b)  Not  for  principal's  benefit.  Where  an  agent  uses 
his  position  as  such,  to  perpetrate  an  independent  fraud 
for  his  own  benefit,  the  wrongful  act  clearly  is  not  in  fur- 
therance of  the  agency,  and  hence,  it  would  seem,  should 
in  no  way  be  imputed  to  the  principal.  On  this  proposi- 
tion there  is  conflict  of  authority.*^  Thus,  where  a  freight 
agent,  authorized  to  issue  bills  of  lading,  upon  receipt  of 
goods  for  shipment,  fraudulently  issues  such  a  bill,  where 
no  goods  have  been  received,  and  the  same  comes  into  the 
hands  of  a  ho)ia  fide  purchaser,  it  has  been  held  by  the 
Supreme  Court  of  the  United  States  that  the  railway  com- 
pany would  not  be  liable.*^     "The  fraud,"  said  the  court, 

Law,  288;  Keefe  v.  Sholl,  181  Pa.  St.  90,  37  Atl.  IIG.  But  the 
fraud  always  will  constitute  a  defense  to  the  contract. 

45  Hartford  Ins.  Co.  v.  Sherman,  223  111.  329,  78  N.  B.  923; 
Mayer  v.  Dean,  115  N.  Y.  556,  22  N.  E.  261.  An  owner  of  land  is 
bound  by  representations  of  his  agent  in  negotiating  a  lease 
thereof.    Finch  v.  Causey,  107  Va,  124,  57  S.  E.  562. 

*6  Wolfe  V.  Pugh,  101  Ind.  293.  See  Western  Cottage  Piano  Co. 
V.  Anderson,  45  Tex.  Civ.  App.  513,  101  S.  W.  1061. 

47  National  Bank  of  Commerce  v.  Railway,  44  Minn.  224,  46  N. 
W.  342;  Dean  v.  King,  22  Ohio  St.  118;  Louisiana  Nat.  Bank  v. 
Laveille,  52  Mo.  380;  Bank  of  Batavia  v.  Railway  Co.,  106  N.  Y. 
195,  12  N.  E.  433;  Brooke  v.  Railway  Co.,  108  Pa.  St.  529,  1  AU. 
206;  Keyser  v.  Hinkle,  127  Mo.  App.  62.  106  S.  W.  98. 

48  Freidlander  v.  Railway  Co.,  130  U.  S.  416;  The  Freeman  v. 
Buckingham,  18  How.  (U.  S.)  182;  National  Bank  of  Commerce 
V.  Railway  Co.,  44  Minn.  224,  46  N.  W.  342. 


192  THE  LAW  OF  AGENCY. 

"was  within  the  scope  of  the  agent's  employment  or  outside 
of  it.  It  was  not  within  it,  for  bills  of  lading  could  only 
be  issued  for  merchandise  delivered ;  and  being  without  it, 
the  company,  which  derived  no  benefit  from  the  unau- 
thorized and  fraudulent  act,  can  not  be  made  responsi- 
ble."*^ By  invoking  the  doctrine  of  estoppel,  however, 
other  courts,  in  analogous  cases,  hold  the  principal  to  lia- 
bility.^°  Thus,  where  the  secretary  of  a  corporation,  who 
was  also  its  agent  for  the  transfer  of  stock,  and  was  author- 
ized to  countersign  and  issue  stock,  when  signed  by  the 
president,  forged  the  latter 's  name  and  fraudulently  issued 
a  certificate  to  a  confederate,  it  was  held  that  the  corpora- 
tion was  liable  in  damages  to  a  bona  fide  purchaser.^^  To 
like  effect  was  the  ruling  in  an  earlier  case,  where  the  officer 
of  a  corporation,  authorized  to  issue  stock,  fraudulently, 
and  for  his  own  benefit,  issued  certificates  in  excess  of  the 
amount  which  the  corporation  was  authorized  to  issue,  and 
caused  them  to  be  sold  by  the  transferee  to  a  bona  fide  pur- 
chaser." Said  the  court :  "Where  the  principal  has  clothed 
his  a-gent  with  power  to  do  an  act,  resting  upon  the  existence 
of  some  extrinsic  fact,  necessarily  and  peculiarly  within  the 
knowledge  of  the  agent,  and  of  the  existence  of  which  the  act 
of  executing  the  power  is  itself  a  representation,  a  third  per- 
son dealing  with  such  agent  in  entire  good  faith,  pursuant 
to  the  apparent  authority,  may  rely  upon  the  representa- 
tion, and  the  principal  is  estopped  from  denying  its  truth 

■•!'  Fioidlander  v.  Railway  Co.,  supra. 

f'O  Hank  of  Halavia  v.  Railway  Co.,  106  N.  Y.  19-5,  12  N.  E.  433; 
Brooke  v.  Railway  Co.,  108  Pa.  St.  529,  1  Atl.  206;  Savings  Bank 
V.  Railway  Co.,  20  Kan,,  519. 

61  Fifth  Ave.  Bank  v.  Railway  Co.,  137  N.  Y.  231,  33  N.  E.  378. 

"New  York,  etc.,  Ry.  Co.  v.  Schuyler,  34  N.  Y.  30. 


ADMISSION — NOTICE — LIABILITY    OF    PRINCIPAL.  193 

to  his  prejudice. "  ^^  In  short,  when  one  of  two  innocent 
persons  must  suffer  by  the  act  of  a  third,  he  who  has  enabled 
the  third  person  to  occasion  the  loss  should  sustain  it.  Thus, 
where  the  agent  of  a  telegraph  company  sent  a  forged  mes- 
sage, by  which  a  person  was  defrauded,  the  company  was 
held  liable." 

IV.  Principal's  Liability  for  Agent's  Crimes. 

§  121.  In  general.  Since  existence  of  criminal  intent 
is  necessary  to  constitute  liability  for  criminal  acts,  neither 
a  master,  nor  a  principal,  can  be  held  criminally  liable  for 
crimes  of  a  servant,  or  agent,  unless  he  precedently  author- 
ized or  assented  to  the  act.^^  For  the  same  reason,  crimi- 
nal liability  can  not  arise  from  ratification.^^  If  the  agent 
be  innocent,  the  principal  alone  is  liable  for  crimes  which 
he  instigates ;  ^^  but  if  both  are  guilty,  the  relation  becomes 
that  of  principal  and  accessory,  and  the  liability  is  joint.^* 

53  New  York,  etc.,  Ry.  Co.  v.  Schuyler,  supra.  An  estoppel 
would  not  arise  in  favor  of  one  who  purchased  directly  from  the 
agent.  Bank  of  New  York,  etc.,  Ass'n  V;.  Trust  Co.,  143  N.  Y.  559, 
38  N.  E.  713.  Nor  would  it  arise  unless  the  agent  was  acting 
within  an  apparent  authority;  thus,  where  surrendered  certifi- 
cates were  delivered  for  cancellation  to  the  manager  of  a  corpo- 
ration who  transferred  them  to  a  purchaser,  the  corporation  was 
not  liable.    Knox  v.  American  Co.,  148  N.  Tl.  441,  42  N.  E.  988. 

B4  McCord  V.  Telegraph  Co.,  39  Minn.  181,  39  N.  W.  315. 

55  Com.  V.  Nichols,  10  Mete.  (Mass.)  259,  43  Am.  Dec.  432;  Com. 
V.  Briant,  142  Mass.  463,  8  N.  E.  338;  State  v.  Bacon,  40  Vt.  456; 
State  V.  James,  63  Mo.  570.  Knowledge  of  the  act  will  not  render 
the  principal  liable,  if  it  was  done  without  his  consent.  Com.  v. 
Putnam,  4  Gray   (Mass.),  16. 

68  Morse  v.  State,  6  Conn.  9;  Ante,  §  54   (c). 

57  Com  V.  Hill,  11  Mass.  135;  State  v.  Learned,  41  Vt.  585; 
Gregory  v.  State,  26  Ohio  St.  510;  State  v.  Wyckoff,  31  N.  J.  Law. 
65.  As  where  a  person  puts  poison  into  the  hand  of  a  child  and. 
directs  him  to  administer  it. 

58  People  V.  Lyon,  99  N.  Y.  210;  McClain  Crim.  Law,  §  204. 

13 


194'  THE  LAW  OF  AGENCY. 

§  122.  Assent  of  principal,  (a)  In  general  Assent  of 
the  principal  must  be  actually  shown,  and  can  not  be  in- 
ferred from  the  fact  of  employment  to  conduct  a  lawful 
business.^®  In  cases  of  sale  of  libelous  books,  or  commis- 
sion of  criminal  nuisances,  where  the  nuisance  is  the  natural 
consequences  of  the  business  engaged  in,  prior  assent  may 
be  presumed.®"  And,  so,  frequently  in  cases  of  sale  of 
liquor  without  license.®^ 

(b)  Statutory  offenses.  In  cases  of  certain  police  regu- 
lations, punishment  may  be  imposed  irrespective  of  intent 
to  violate  them ;  on  the  theory  that  they  impose  an  absolute 
duty  upon  particular  persons  to  see  that  prohibited  acts 
are  not  committed.®^  Thus,  where  a  statute  forbids  the 
opening  of  saloons  on  Sunday,  its  penalty  is  usually  held 
to  be  denounced  against  the  person  whose  saloon  is  open, 
and  may  be  enforced  against  him,  notwithstanding  that  the 
saloon  was  kept  open  by  an  agent  without  his  assent.®* 

69  Hipp  V.  State,  5  Blackf.  (Ind.)  149;  Sloan  v.  State,  8  Ind. 
312;   State  v.  Smith,  10  R.  I.  258. 

60  Com.  V.  Morgan,  107  Mass.  199;  State  v.  Mason,  26  Ore.  273. 
38  Pac.  130;  Com.  v.  Gray,  150  Mass.  327,  23  N.  E.  47;  Hipes  v. 
State,  73  Ind.  39;  Reg.  v.  Stepehen  L.  R.,  1  Q.  B.  (Eng.)  702. 

81  Com.  V.  Nichols,  10  Mete.  (Mass.)  259,  43  Am.  Dec.  432;  State 
V.  Wentworth,  65  Me.  234;  State  v.  O'Connor,  58  Minn.  193,  59  N. 
W.  999.   The  presumption  is  prima  facie  only  and  may  be  rebut 
ted.    Com.  v.  Park,  1  Gray  (Mass.)  553;  People  v.  Parks,  49  Mich 
333;  Com.  v.  Joslin.  158  Mass.  482,  33  N.  E.  653. 

62  Carroll  v.  State,  63  Md.  551,  3  Atl.  29;  State  v.  Denoon,  31 
W.  Va.  122,  5  S.  E.  315;  State  v.  Kittelle,  110  N.  C.  560,  15  S.  E. 
103;  McClain  Crim.  Law,  §  189. 

63  State  V.  Roby,  52  Mich.  577,  18  N.  W.  365;  Com.  v.  Kelly,  140 
Mass.  441,  5  N.  E.  834.  Statutes  frequently  make  punishable  a 
sale  by  any  person,  his  servant  or  agent.  State  v.  Stewart,  81 
Me.  515;  State  v.  McCance,  110  Mo.  398,  19  S.  W.  648. 


CHAPTER  XII. 

LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL. 

§  123.  In  general. 

124.  Sealed  and  negotiable  instruments. 

125.  Other  contracts. 

(a)  Liability  to  undisclosed  principal. 

(b)  Principal  excluded. 

126.  Defenses. 

(a)  In  general. 

(b)  EstOFpel. 

127.  Money  paid  through  mistake. 

128.  Property  wrongfully  transferred. 

(a)  .In  general. 

(b)  Indicia  of  ownership. 

(c)  Money  and  negotiable  instruments. 

129.  Following  trust  funds. 

130.  Fraud. 

(a)  In  general. 

(b)  Collusion  with  agent. 

131.  Causing  loss  of  service. 

§  123.  In  general.  Obligations  of  contract  are  always 
reciprocal.  Hence,  where  a  principal  is  bound  by  contract, 
made  through  an  agent,  with  a  third  person,  the  latter,  of 
course,  is  reciprocally  bound.  In  those  cases  where  an 
agent,  acting  within  the  scope  of  his  authority,  properly 
executes  a  contract  in  the  name  of  the  principal,  the  prin- 
cipal alone  is  bound  by  such  contract  to  the  third  per- 
son, and  the  third  person  in  turn  is  liable  thereon  to  the 
principal  and  to  no  one  else.^     The  situation  is'  the  same  as 

1  Sharp  V.  Jones,  18  Ind.  314,  81  Am.  Dec.  359;  Lamson  &  Good" 
now  Mfg.  Co.  V.  Russell,  112  Mass.  387. 


196  THE  LAW  OF  AGENCY. 

it  would  have  been  had  the  principal  acted  in  person. 
Hence  liability  on  such  a  contract  is  subject  to  such  de- 
fenses as  could  have  been  made  had  the  principal  dealt 
in  person.  Thus,  if  the  contract  had  been  induced  by 
fraud  of  the  agent,  the  third  party  may  defend  on  that 
ground.^  And  so,  as  we  have  seen,  notice  to  an  agent  of 
adverse  rights,  affecting  the  transaction,  may  usually  be 
imputed  to  the  principal.' 

§  124.  Sealed    and    negotiable    instruments.    As    was: 

fully  explained  in  an  earlier  chapter,  a  principal  is  not 
bound  by  a  sealed  or  negotiable  instrument,  though  ex- 
ecuted for  him  by  his  agent,  unless  he  appears  upon  the 
face  of  such  instrument  as  the  party  thereto.*  Where  the 
principal  is  not  boimd  to  the  third  person  by  virtue  of  such 
an  instrument,  the  third  person,  of  course,  is  not  bound 
thereby  to  the  principal.^ 

§  125.  Other  contracts,  (a)  Liability  to  undisclosed 
principal.  As  we  have  already  seen,  where  an  agent  exe- 
cutes a  simple  contract,  other  than  a  negotiable  instrument, 
in  his  own  name,  but  in  behalf  of  an  undisclosed  principal, 
the  third  person,  upon  discovery  of  the  latter 's  existence. 
may,  at  his  option,  elect  to  hold  such  principal.®    This 

zSandford  v.  Handy,  23  Wend.  (N.  Y.)  260;  Mundorfl  v.  Wick- 
ersham,  63  Pa.  87,  3  Am.  Rep.  531;  Union  Trust  Co.  v.  Phillips. 
7  S.  D.  225,  63  N.  W.  903;  Ante  §  120. 

3  Ante  §  116. 

♦  Ante  §  107. 

B  Spencer  v.  Field,  10  Wend.  (N.  Y.)  88;  Ilenricus  v.  Englert. 
137  N.  Y.  488,  33  N.  E.  550.  A  person  not  a  party  to  a  sealed  con 
tract  can  not  show  that  the  party  thereto  acted  as  agent  for  him 
Elliott  V.  Brady,  192  N.  Y.  221,  85  N.  E.  69. 

e  Ante  §  109. 


LIABILITY  OF   THIRD  PERSON  TO  PRINCIl'AL.  197 

right,  again,  involves  a  reciprocal  obligation.  The  princi- 
pal, in  turn,  may  disclose  himself,  assume  the  position  of 
the  real  party  to  the  contract,  and  enforce  against  such 
third  person  the  obligations  thereof/  Before  such  disclo- 
sure, the  third  person  may,  v^ith  safety,  deal  with  the  agent 
as  the  real  party  to  the  contract ;  but  after  notice  of  a  priu- 
cipal's  existence,  settlement  with  the  agent  would  be  made 
at  peril.*  Until  appearance  of  the  principal,  the  agent  may 
enforce  the  contract,  but  his  right  is  subservient  to  that 
of  the  principal  who,  even  after  suit  has  been  started  by  the 
agent,  may  intervene  and  assert  his  superior  position  as  the 
real  party  to  the  contract.® 

(b)  Principal  excluded.  As  is  evident  from  our  dis- 
cussion, a  person  who  enters  into  a  simple  contract,  other 
than  a  negotiable  instrument,  takes  the  chance  of  ultimately 
finding  himself  bound  by  the  same  to  a  person  other  than 
the  one  with  whom  he  dealt;  for  the  latter  may  prove 
merely  the  agent  of  an  undisclosed  principal.  This  possi- 
bility may,  of  course,  be  forestalled  by  so  terming  the  con- 
tract as  to  exclude  parties  other  than  the  one  in  whose  name 
it  is  made,  as  where  the  latter  specifies  that  he,  personally, 
is  the  owner  of  property  that  forms  the  subject  matter  of 
the  agreement.^"     So,  the  nature  of  an  obligation  may  be 

7  Huntington  v.  Knox,  7  Cush.  (Mass.)  371;  Ames  v.  Railway 
Co.,  12  Minn.  413;  Foster  v.  Graliam,  166  Mass.  202,  44  N.  E.  129; 
Elkins  V.  Railway  Co.,  19  N.  H.  337,  51  Am.  Dec.  184;  Great  Lake 
Towing  Co.  V.  Mills  Transp.  Co.,  83  C.  C.  A.  607,  155  Fed.  11;  Noel 
Const.  Co.  V.  Atlas  Portland  Cement  Co.,  103  Md.  209,  63  Atl.  384. 

8  Dubois  V.  Perkin,  21  Ore.  189,  27  Pac.  1044;  Pitts  v.  Mower,  18 
Me.  361,  36  Am.  Dec.  727. 

9  Colburn  v.  Phillips,  13  Gray  (Mass.)  64;  Alsop  v.  Caines,  10 
Johns.  (N.  Y.)  396;   Sadler  v.  Leigh,  4  Camp.  (Eng.)  195. 

10  Winchester  v.  Howard,  97  Mass.  303,  93  Am.  Dec.  93.  See 
King  V.  Batterson,  13  R.  I.  117,  43  Am.  Rep.  13;  Boston  Ice  Co.  ▼. 


19S  THE  LAW  OF  AGENCY. 

such  as  tc  imply  personal  performtince,  as  in  the  case  of 
contracts  for  services,  where  the  character  or  skill  of  the 
person  dealt  with  is  an  essential  element  of  the  agreement.^^ 
Thus,  where  a  particular  lawyer  is  retained  to  try  a  case, 
some  other  lawyer — though  he  might  be  a  better  one — 
could  not  assert  a  right  to  perform  the  service,  on  the 
ground  that  he  was  the  undisclosed  principal  of  the  man 
employed,^^  He  might,  however,  recover  a  fee  due  the 
agent  for  performance,  by  the  latter,  of  the  services^^ 

§  126,  Defenses,  (a)  In  general.  Before  disclosure 
of  a  principal,  or  notice,  actual  or  constructive,  of  a  princi- 
pal's existence,  a  third  person  is  clearly  justified  in  dealing 
upon  the  assumption  that  the  agent  is  the  real  and  only 
party  to  the  transaction ;  and  his  rights  will  be  protected 
accordingly.^*  Payment  to  the  agent  before  notice  of  ex- 
istence of  an  undisclosed  principal,  discharges  the  third 

Potter,  123  Mass.  28,  25  Am.  Rep.  9;  Moore  v.  Vulcanite  Cement 
Co.,  106  N.  Y.  Supp.  393.  Where  exclusive  credit  is  given  the 
agent  in  his  own  name,  an  undisclosed  principal  can  not  sue  on 
the  contract.    Cowan  v.  Curran,  216  111.  598,  75  N.  E.  322. 

"Boston  Ice  Co.  v.  Potter,  123  Mass.  28,  25  Am.  Rep.  9;  Keliy 
V.  Thuey,  102  Mo.  522,  15  S.  W.  G2;  Kelly  v.  Thuey,  143  Mo.  422. 
45  S.  W.  301.  So,  generally  where  the  agreement  involves  ele- 
ments of  personal  trust  and  confidence  in  the  person  acting  as 
ostensible  principal.  Birmingham  Matinee  Club  v.  McCa.rty,  152 
Ala.  571,  44  South.  042. 

12  Eggleston  V.  Boardman,  37  Mich.  14. 

"Warder  V.  White,  14  111.  App.  50;  Sullivan  v.  Shailor,  70 
Conn.  733,  40  Atl.  1054. 

'*  Shine  v.  Kinealy,  102  111.  App.  473.  Where  a  person  deal? 
■with  another,  believing  him  to  be  the  principal,  an  undisclosed 
principal,  if  he  seeks  to  enforce  the  contract,  must  take  it  as  the 
agent  and  the  other  party  made  it; — must  suffer  its  burdens,  and 
lake  payments  as  the  agent  agreed  to  take  them.  Hook  v.  Crowo„ 
100  Mo.  200.  01   Atl.  1080. 


LLVBILITY  OF   THIRD   PERSON   TO  PRINCIPAL.  199 

person  from  further  liability."  So,  the  third  party  may 
set  off  a  debt  due  him  from  the  agent,  though  the  same 
arose  after  the  transaction,  but  before  notice  of  the  agency .^^ 
And,  generally,  any  defense  that  Avould  have  been  good 
against  the  agent  will  be  available  against  the  undisclosed 
principal,  provided  the  same  arose  before  notice  of  the 
principal's  existence."  "Wliere  the  third  person  knows, 
or  has  reason  to  believe,  that  he  is  dealing  with  an  agent, 
he  will  not  be  protected  because  the  identity  of  the  princi- 
pal was  unknown.^^ 

(b)  Estoppel.  The  rules  laid  down  in  the  preceding 
subdivision  are  simply  an  application  of  the  equitable  doc- 
trine of  estoppel.  "Where  a  principal  authorizes  his  agent 
to  act  as  ostensible  principal,  he  will  not  be  permitted  to 
assert  the  agency  to  the  disadvantage  of  one  who  relied  in 
good  faith  upon  what  appeared  to  be  a  different  state  of 
facts. ^®  And  though  the  agent  violated  instructions,  and 
acted  wrongfully,  in  not  disclosing  the  fact  that  he  was 
merely  an  agent,  the  principal  may  still  be  estopped  to  as- 
sert his  rights,  where  he  clearly  put  it  within  the  power  of 
the  agent  to  deceive  third  persons.  Thus,  it  is  generally 
held  in  cases  where  an  agent  to  sell  is  intrusted  with  pos- 

15  Dubois  V.  Perkins,  21  Ore.  189,  27  Pac.  1044;  Rice  &  Bullen 
Malting  Co.  v.  Bank,  185  111.  422,  56  N.  E.  1063. 

16  Gardner  v.  Allen,  6  Ala.  187,  41  Am.  Dec.  45;  Frame  v.  Coal 
Co.,  97  Pa.  309;  Baxter  v.  Sherman,  73  Minn.  434,  76  N.  W.  211. 

17  Though  an  undisclosed  principal  may  sue  on  a  contract  made 
with  his  agent,  yet  the  other  party  will  be  entitled  to  set  off  any 
claim  he  may  have  against  the  agent.  Durant  Lumber  Co.  v.  Sin-i 
Clair  Lumber  Co.,  2  Ga.  App.  209,  58  S.  E.  485. 

isilsley  V.  Merriam,  7  Cush.  (Mass.)  242.  54  Am.  Dec.  721; 
Traub  v.  Milliken,  57  Me.  67,  2  Am.  Rep.  14;  Rosser  v.  Darden,  82 
Ga.  219,  7  S.  E.  919. 

«  Baxter  v.  Sherman,  73  Minn.  434,  76  N.  W.  211. 

20Belfield  v.  Supply  Co.,  189  Pa.  St.  189,  42  Atl.  131. 


200  TtlE  LAW  OF  AGENCY. 

session  of  the  goods,  and  sells  the  same  without  disclosing 
the  agency,  that  defenses  good  against  the  agent  may  be 
set  up  against  the  principal.^"  "Where  the  defense  consists 
merely  of  payment  to  the  agent,  it  could  also  be  predicated 
upon  the  ground  that  an  agent  to  sell,  when  intrusted  with 
possession,  has  implied,  or  apparent,  authority  to  receive 
payments.^^ 

■  But  where  an  agent,  not  intrusted  with  possession,  nor 
otherwise  held  out  as  owner  of  goods,  which  he  is  authorized 
to  sell,  makes  a  sale  without  disclosing  the  agency,  the  prin- 
cipal would  not  be  bound  by  payment  to  the  agent,  nor 
could  the  buyer  set  off  a  debt  due  him  from  the  agent.-- 
So,  even  though  the  agent  is  intrusted  with  possession,  or 
otherwise  held  out  as  apparent  owner,  a  third  person  deal- 
ing with  him  can  not  ignore  facts  which  would  put  a  rea- 
sonably prudent  man  on  inquiry;  and  if  he  does  ignore 
such  facts  and  neglects  to  make  such  inquiry  he  is  charged 
with  constructive  notice  of  the  agency.-^ 

§  127.  Money  paid  through  mistake.  Where  money  is 
paid,  or  property  transferred,  by  an  agent  to  a  third  party 

21  Ante  §  96. 

22McLachlin  v.  Brett,  105  N.  Y.  391,  12  N.  E.  17.  "The  fact 
that  the  agent  had  not  possession  of  the  property  he  was  selling 
was  sufficient  to  require  of  defendant  that,  before  payment,  he 
should  ascertain  to  whom  payment  was  due."  Crosby  v.  Hill,  39 
Ohio  St.  100. 

23  Miller  v.  Lea,  35  Md.  396,  6  Am.  Dec.  417;  Baxter  v.  Sherman, 
73  Minn.  436,  7G  N.  W.  211;  Hook  v.  Crowe,  100  Me.  399,  61  Atl. 
1080.  Thus,  where  a  cotton  broker,  Intrusted  with  possession, 
sold  in  his  own  name,  but  the  buyer  knew  that  he  sometimes  sold 
la  his  own  name  when  merely  acting  as  broker,  and  in  this  case 
the  buyer  had  no  belief  either  way,  he  was  not  permitted  to  set 
off  against  the  principal  a  debt  due  from  the  broker.  Cook  v. 
Eshelby,  12  App.  Cas.   (Eng.)   271. 


LLVBILITY   OF   THIRD   PERbON   TO   PRINCIPAL.  201 

through  mistake,  or  under  other  circumstances  which  would 
justify  recovery  had  the  principal  himself  paid  the  money 
or  made  the  transfer,  the  third  party  will  be  liable  to  the 
principal  for  the  return  of  such  money  or  other  property.^* 
So,  money  illegally  exacted  from  an  agent,  or  lost  by  him 
in  gambling,  may  be  recovered  by  the  principal.^' 

§  128.  Property  wrongfully  transferred,  (a)  In  gen- 
eral. Where  an  agent  without  authority,  transfers  the 
property  of  his  principal  to  a  third  person,  no  title  passes ; 
and  the  principal  may  recover  such  property  from  any  one 
holding  the  same.^®  Thus,  where  an  agent  having  posses- 
sion of  property  of  his  principal,  but  not  for  purpose  of 
sale,  fraudulently  sells  the  same  even  to  an  innocent  person, 
such  person  no  more  acquires  title  than  he  would  have  if 
lie  had  purchased  from  a  thief ;  and  the  owTier  may  recover 
the  property  from  him.^^ 

As  we  saw  in  an  earlier  chapter,  the  conduct  of  the  prin- 
cipal may  have  been  such  as  to  estop  him  to  deny  want  of 
authority  in  the  agent  to  sell.^^  Ordinarily,  mere  posses- 
sion of  goods  does  not  imply  authority  to  sell  them,  but 
under  certain  circumstances,  intrusting  an  agent  with  pos- 
session may  be  sufficient  to  estop  the  principal  either  from 
denying  that  the  agent  was  empowered  to  sell,  or  from  de- 

2*  United  States  v,  Bartlett,  2  Ware.  (U.  S.)  17. 

25  Holman  v.  Frost,  26  S.  C.  290;  Mason  v.  Waite,  17  Mass.  560; 
Burnham  v.  Fisher,  25  Vt.  514. 

26  Levi  V.  Booth,  58  Md.  308,  42  Am.  Rep.  332;  Manning  v.  Keen- 
an,  73  N.  Y.  45;  Gilman  Linseed  Oil  Co.  v.  Norton,  89  Iowa,  434, 
56  N.  W.  663. 

27  Thompson  v.  Barnum,  49  Iowa,  392;  Bertholf  v.  Quinlan,  68 
111.  297;   Grubel  v.  Busche,  75  Kan.  820,  91  Pac.  73. 

*8  Ante  §  51. 


202  THE  LAW  OF  AGENCY. 

nying  ownership  in  the  agent.^^  "Two  things,"  said  the 
court  in  a  New  York  ease,  "must  concur  to  create  an  es- 
toppel by  which  an  owner  may  be  deprived  of  his  property, 
by  the  act  of  a  third  person,  without  his  assent:  1.  The 
owner  must  clothe  the  person  assuming  to  dispose  of  the 
property  with  the  apparent  title  to,  or  authority  to  dispose 
of,  it;  and  2.  The  person  alleging  the  estoppel  must  have 
acted  and  parted  with  value,  upon  the  faith  of  such  ap- 
parent ownership  or  authority,  so  that  he  will  be  the  loser 
if  the  appearances  to  which  he  trusted  are  not  reaL"*° 
Thus,  if  a  man  voluntarily  places  his  property  in  the  hands 
of  another  whose  business  it  is  to  sell  such  property  as  ageni 
for  others,  in  the  absence  of  circumstances  indicating  a 
contrary  intention,  the  inference  arises  that  such  agent  has 
authority  to  sell  the  property,  and  innocent  third  persons 
may  safely  act  upon  such  inference.^^  As  was  said  in  an 
English  case :  "  If  the  owner  of  a  horse  send  it  to  a  reposi- 
tory of  sale,  can  it  be  implied  that  he  sent  it  thither  for 
any  other  purpose  than  that  of  sale?  Or  if  one  sends  good:: 
to  an  auction  room,  can  it  be  supposed  that  he  sent  them 
thither  merely  for  safe  keeping  ?"^^ 

Mere  possession  will  not  imply  authority  to  sell  unless 
it  is  inconsistent  with  any  other  inference ;  ^^  and  unless 

29  Ante  §  90. 

30  Barnard  v.  Campbell,  55  N.  Y.  456,  14  Am.  Rep.  289;  s.  c,  58 
N.  Y.  73,  17  Am.  Rep.  208. 

31  Smith  V.  Clews,  105  N.  Y.  283,  59  Am.  Rep.  502,  11  N.  E.  632; 
Ihalh  V.  Stoddard,  91  Me.  499,  40  Atl.  547;  Towle  v.  Leavitt,  23 
N.  H.  3C0,  55  Am.  Dec.  195.  It  is  not  enough  to  create  an  estoppel 
that  the  person  intrusted  with  possession  is  a  dealer  in  that 
class  of  goods.    Levi  v.  Booth,  58  Md.  305,  42  Am.  Rep.  332. 

32  Pickering  v.  Bu.sl<,  15  East.  38. 

33  Covin  V.  ITlll,  4  Donlo  (N.  Y.),  323;  McNeil  v.  Tenth  Nat 
I'.ank.  AC  N.  Y.  325,  7  Am.  Rep.  341. 


LIABILITY  OP   THIRD   PEUSON  TO  PRINCIPAL.  203 

possession  is  acquired  M'itli  the  owner's  consent.'''*  "If  it 
were  otherwise, ' '  to  quote  an  English  judge,  ' '  people  would 
not  be  secure  in  sending  their  watches  or  articles  of  jewelry 
to  a  jewelry  establishment  to  be  repaired,  or  cloth  to  a 
clothing  establishment  to  be  made  into  garments."  ^^ 
Neither  would  it  be  safe  to  intrust  goods  to  an.  agent  for 
storage  or  transportation ;  and  a  person  could  be  divested 
of  title  by  an  agent  wrongfully  securing  possession  of  goods 
and  selling  them  to  another.  But  in  none  of  these  cases 
could  the  agent  pass  title.^® 

(b)  Indicia  of  ownership.  Where,  however,  the  owner 
of  property  not  only  intrusts  the  agent  with  possession,  but 
also  invests  him  with  written  evidence  or  indicia  of  owner- 
ship, he  will  be  estopped,  as  against  an  innocent  purchaser, 
to  deny  the  agent's  title.^^  Thus,  w^here  the  owner  of  bank 
shares  delivered  the  same  to  a  broker,  indorsed  with  an  as- 
signment and  a  power  of  transfer  signed  and  sealed  by  him- 
self, and  the  broker  wa^ongfuUy  disposed  of  the  same  for 
his  own  benefit,  the  principal  was  held  estopped  to  assert 
his  title  against  a  bona  fide  holder.^^  So,  where  an  agent 
purchased  a  horse  for  his  principal,  but  took  the  bill  of  sale 
in  his  own  name,  and  the  principal,  with  knowledge  of  that 
fact,  allowed  the  agent,  in  order  to  train  it,  to  keep  pos- 
session of  the  horse  and  also  of  the  bill  of  sale,  he  was  es- 
topped to  set  up  his  title  against  an  innocent  person  to 

34Saltus  V.  Everett,  20  Wend.  (N.  Y.)  267,  32  Am.  Dec.  541. 
35  Wilkinson  v.  King,  2  Camp.  335. 

36McMalion  v.  Sloan,  12  Pa.  St.  229,  51  Am.  Dec.  602;  Gussner 
V.  Hawks  (N.  D.),  101  N.  W.  898. 

37  Nixon  V.  Brown,  57  N.  H.  34;  Walker  v.  Railway  Co.,  47  Mich. 
338,  11  N.  W.  187;  Moore  v.  Metropolitan  Bank,  55  N.  Y.  41,  14  Am. 
Rep.  173. 

38  McNeil  V.  Tenth  Nat.  Bank,  46  N.  Y.  325,  7  Am.  Rep.  341. 


20-1  THE  LAW  OF  AGENCr.    ' 

whom  the  agent,  in  fraud  of  his  principal,  subsequently 
sold  the  horse.^^  And,  generally,  any  conduct  of  an  owner 
of  property  which  unequivocably  creates  appearance  of 
ownership  in  another  may  be  shown  for  the  purpose  of  es- 
topping such  o■^^^ler  to  set  up  title  in  himself.*" 

(c)  Money  and  negotiable  instruments.    The  rules  dis 
cussed  in  the  two  preceding  subdivisions  have,  in  the  main 
no  application  to  the  transfer  of  money,  or  of  negotiabl 
instruments  payable  to  bearer  or  indorsed  in  blank.     It  i 
the  policy  of  the  law,  induced  by  business  necessity,  t( 
permit  money,  and  such  negotiable  paper  as  is  transferable 
by  delivery,  to  pass  freely  from  hand  to  hand  unaffected 
by  limitations  not  appearing  on  its  face.     "Where  a  persoji 
linds,  or  even  steals,  either  money  or  negotiable  paper  pa> 
able  to  bearer  or  indorsed  in  blank,  and  pays  out  such 
money,  or  delivers,  before  maturity,  such  negotiable  paper 
to  an  innocent  person  for  value,  the  transferee  acquires  titb- 
good   against   even   the   original  owner.*^     It   follows,   of 
course,  that  where  an  agent  acquires,  either  rightly  or  tor- 
tiously,  possession  of  money  or  negotiable  paper  of  the  char- 
acter described,  belonging  to  his  principal,  he  can,  under 
like  conditions,  vest  good  title  in  an  innocent  transferee.*- 

39  Nixon  V.  Brown,  57  N.  H.  34. 

*o  Calais  Steamboat  Co.  v.  Van  Pelt.  2  Black.  (U.  S.)  372;  Bart- 
lett  V.  Board,  59  111.  371.  In  order  to  estop  the  true  owner,  the 
purchaser  must  have  parted  with  value,  in  good  faith,  and  in  r&- 
liance  upon  the  appeaiance  of  ownership  or  authority  in  the 
agent.  Barnard  v.  Campbell,  55  N.  Y.  456,  14  Am.  Rep.  289;  s.  c, 
on  motion  for  rehearing.     58  N.  Y.  73,  17  Am.  Rep.  208. 

*i  Tiedeman  on  Bills  and  Notes,  §  93.  After  maturity  a  bill  or 
note  loses  Its  peculiar  character  of  a  negotiable  instrument. 

"Burnham  v.  Ilolt,  14  N.  H.  3C7;  Smith  v.  Farmers',  etc..  Bank, 
2  Cal.  A  pp.  377,  84  Pac.  348.  If  the  paper  were  payable  to  the 
prlncijial,  hut  not  indorsed,  its  possession  would  be  no  evidence  of 


LIABILITY  OF   THIRD   PERSON  TO  PRINCIPAL.  205 

§  129.  Following  trust  funds.  Where  an  agent  \vrong- 
fully  converts  property  of  his  principal  into  some  other 
form,  as  where  he  purcliases  property  with  funds  belonging 
to  his  principal,  he  will  be  deemed  to  hold  the  same  as  trus- 
tee for  the  principal,  whose  equitable  right  in  all  proceeds 
of  such  wrongful  transaction  attaches,  no  matter  through 
how  many  transmutations  of  form  the  property  may  have 
passed.*'  "Where,  however,  an  agent  wrongfully  using  his 
principal's  funds,  purchases  property  and  then  transfers 
the  same  for  value  to  an  innocent  purchaser,  the  trust  in 
favor  of  the  principal  can  not  be  enforced  against  such 
l>07ia  fide  holder.^*  The  principal's  right  or  title  in  the 
property  is  merely  equitable  and  can  not  defeat  a  legal  title 
acquired  for  value  and  without  notice.*^ 

§  130.  Fraud,  (a)  In  general.  Where  a  third  person 
in  dealing  with  an  agent  is  guilty  of  fraud,  as  where  he  in- 
duces the  making  of  a  contract  by  false  representations, 
his  liability  to  the  principal  is  the  same  as  it  would  have 
been  had  the  principal  dealt  in  person.^^  So,  where  a  pub- 
lie  officer  made  a  false  record,  and  a  person  suffered  loss  by 

title  in  the  agent.  Gibson  V.  Miller,  29  Mich.  355;  Lancaster  Nat 
Bank  V.  Taylor,  100  Mass.  IS,  97  Am.  Dec.  70. 

43  Farmers'  &  Mechanics'  Bank  v.  King,  57  Pa.  St.  202,  98  Am. 
Dec.  215;  Central  National  Bank  v.  Insurance  Co.,  104  U.  S.  54; 
Third  Nat.  Bank  v.  Gas  Co.,  36  Minn.  75,  30  N.  W.  440;  Baker  v. 
New  York  Nat.  Bank,  100  N.  Y.  31,  53  Am.  Rep.  150. 

*4  Fifth  Nat.  Bank  v.  Hyde  Park,  101  111.  595,  40  Am.  Rep.  218; 
Roca  V.  Byrne,  145  N.  Y.  182,  39  N.  E.  812.  The  principal  may 
reclaim  property  from  a  mere  volunteer  or  purchaser  with  notice. 
Riehl  v.  Association,  104  Ind.  70,  3  N.  E.  633;  Smith  v.  Bank,  2 
Cal.  App.  377,  84  Pac.  348. 

*5  Pomeroy  on  Equity,  §  591;  Twohy  Mercantile  Co.  v.  Melhye, 
78  Minn.  357,  81  N.  W.  20. 

46  Tuckwell  V.  Lamhert,  5  Cush.  (Mass.)  23. 


206  THE  LAW  OF  AGENCY. 

reason  of  the  fact  that  his  agent,  engaged  in  his  business, 
was  deceived  by  such  record,  the  officer  was  held  liable  to 
the  principal.*^ 

(b)  Collusion  with  agent.  An  agent  is  required  to  ex- 
ercise in  the  performance  of  his  duties  the  highest  good 
faith,  and  can  not  be  permitted,  without  the  principal's 
full  knowledge  and  consent,  to  represent  the  other  party 
in  a  transaction.*®  If,  therefore,  such  other  party  colludes 
with  the  agent,  or  seeks  in  any  way  to  influence  his  action 
adversely  to  the  principal's  interest,  as  by  giving  him  a 
gratuity,  such  conduct  constitutes  a  fraud  upon  the  prin- 
cipal, who  may  rescind  the  contract  upon  that  ground ;  *^ 
or  maintain  an  action  against  both  agent  and  third  pei'son 
for  the  wrong.^" 

§  131.  Causing  loss  of  service.  Where  a  person  mali- 
ciously induces  an  agent  to  break  a  contract  of  employ- 
ment and  abandon  his  agency,  it  is  usually  held  that  such 
person  would  be  liable  in  damages  to  the  principal.^^  So, 
an  action  may  be  maintained  against  a  third  person  for 
personal  injury  committed  by  him  upon  an  agent  which 
prevented  the  latter  from  performing  some  stipulated  serv- 

47  Perkins  v.  Evans,  61  Iowa,  35,  15  N.  W.  584 

«Ante  §  25;  Post  §  150. 

<o  United  States  Rolling  Stock  Co.  v.  Atlantic,  etc.,  Ry.  Co.,  34 
Ohio  St.  450,  32  Am.  Rep.  380;  Findlay  v.  Pertz,  13  C.  C.  A.  559 
66  Fed.  427;  New  York  Central  Ins.  Co.  v.  National  Ins.  Co.,  14 
N.  Y.  85;  Bollman  v.  Loomis,  41  Conn.  581. 

50  Boston  V.  Simmons,  150  Mass.  461,  23  N.  E.  210# 

61  Angle  V.  Railway  Co.,  151  U.  S.  1;  Haskins  v.  Royster,  70  N. 
C.  601,  16  Am.  Rep.  780.  See  Bourlier  v.  Macauley,  91  Ky.  135, 
15  S.  W.  60,  where  the  rule  Is  practically  limited  to  domestic 
relations. 


LIABILITY   OP   THIRD   PERSON  TO  PRINCIPAL.  207 

ice.'*  And  it  has  been  held  that  a  railway  company  may 
recover  damages  against  a  person  who  maliciously  causes 
the  arrest  of  its  engineer,  while  running  a  train ;  where  the 
arrest  was  made  with  intent  to  delay  the  train  and  thus 
injure  the  company.^^ 

62  Ames  V.  Union  Railway  Co.,  117  Mass.  541,  19  Am.  Rep.  426; 
Fluker  v.  Railway  Co.,  81  Ga.  461,  8  S.  E.  529. 

53  St.  Johnsbury,  etc.,  Ry.  Co.  v.  Hunt,  55  Vt.  570,  45  Am.  Rep. 
«39. 


PART  lY. 

RIGHTS  AND  LIABILITIES  BETWEEN" 
AGENT  AND  THIRD  PARTY. 


CHAPTER  XIII. 

LIABILITY  OF  AGENT  TO  THIRD  PERSON— LIABILITY  OP 
THIRD   PERSON  TO  AGENT. 


I.  Liability  of  agent  to  third  ptrson. 

132  In  general. 

133.  Simple  contracts. 

(a)  In.  general. 

(b)  Construction. 

134.  Sealed'  instruments. 

135.  Negotiable  instruments. 
13G.  Public  officers. 

137.  Acting  without  authority. 

(a)  In  general. 

(b)  Deceit. 

(c)  Breach  of  warranty. 

(d)  Damages. 

138.  Liability  for  money  received. 

(a)  In  good  faith. 

(b)  Wrongfully. 

139.  Money  received  from  principal. 

140.  Liability  for  torts. 

(a)  In  general. 

(b)  Nonfeasance. 

II.  Liability  of  third  person  to  agent, 

141.  On  contract. 

(a  )    In  Kf'iif'ral. 

(1))    Interest  in  subject  matter. 

(c)  Measure  of  damages. 


LIABILITY  OF  AGENT  TO  THIRD  rEKtfuN.  209 

§  142.  Defenses. 

143.  Professed  agent  real  principal. 

144.  Liability  for  money. 

145.  Liability  for  torts. 

I.  Liahility  of  Agent  to   Third  Pers 

§  132.  In  general.  Where  an  agent,  acting  within  the 
scope  of  his  authority,  real  or  apparent,  properly  executes 
a  contract  in  behalf  of  his  principal,  the  latter  alone  is 
liable  thereon;  and  no  rights  or  obligations  arise  between 
the  agent  and  the  third  party.^  So,  where  a  principal  rati- 
fies a  contract,  made  in  his  behalf  without  authority,  the 
ratification  is  equivalent  to  precedent  authorization,  and 
the  principal  alone  becomes  liable  on  the  contract.^  It  fol- 
lows, therefore,  that  personal  liability  of  an  agent  to  the 
third  person  arises  only  in  those  cases  where  the  agent  acts, 
beyond  the  scope  of  his  authority,  or,  acting  within  the 
scope  of  his  authority,  contracts  in  his  own  name  insteati 
of  in  the  name  of  his  principal.  In  all  cases,  of  course, 
where  the  agent  is  guilty  of  tort,  in  violation  of  the  rights 
of  third  persons,  he  will  be  personally  liable  in  damages, 
notwithstanding  that  in  committing  the  wrongful  act,  he 
was  acting  in  obedience  to  his  principal's  instructions.^ 

§  133.  Simple  contracts,  (a)  In  general.  Where  an 
agent  executes  a  contract  in  his  own  name,  he  clearly  is  a 

iLamson  &  Goodnow  Mfg.  Co.  v.  Russell,  112  Mass.  387.  One 
"who  signs  a  contract  as  agent  for  a  party  thereto  is  not  bound  by 
tlie  contract,  and  tbe  effect  is  the  same,  so  far  as  an  action  based 
thereon  against  the  agent  is  concerned,  as  if  the  party  himself 
had  signed  his  name  to  the  contract.  Largey  v.  Leggat,  30  Mont. 
148,  75  Pac.  950. 

2  Ante,  Chap.  V. 

■^  Post  §  140. 
14 


210  THE  LAW  OF  AGENCY. 

party  thereto  and  hence  is  liable  tliereon ;  notwithstanding 
that  he  executed  the  same  in  behalf  of  a  principal.*  If  the 
contract  be  a  simple  non-negotiable  one,  executed  within 
the  scope  of  the  agent's  authority,  the  third  party,  as  we 
have  seen,  may,  at  his  option,  ignore  the  agent  and  elect  to 
hold  the  undisclosed  principal.^  This  right,  however,  is 
personal,  and  the  agent  can  not  force  him  to  such  election. 
In  short,  if  the  agent  appears  as  the  party  to  the  contract 
he  is  liable  thereon,  and  can  not  escape  liability  by  showing 
the  existence  of  an  undisclosed  principal.  Hence  in  a  suit 
on  such  a  contract  against  the  agent,  extrinsic  evidence  is 
inadmissible  to  show  that  he  acted  in  a  representative  char- 
acter.^ Such  evidence,  clearly,  would  be  immaterial;  for 
proof  of  existence  of  an  undisclosed  principal  would  not 
defeat  the  agent's  personal  liability  where  the  third  party 
elects  to  enforce  it.  Resort  to  an  undisclosed  principal  is 
at  the  option  of  the  third  party.'' 

(b)  Construction,  An  agent,  therefore,  can  escape  be- 
ing held  liable  on  a  contract,  at  the  option  of  the  third 
party,  only  by  showing  that  the  contract  was  made  in  the 

*  Baldwin  v.  Leonard,  39  Vt.  260,  94  Am.  Dec.  324;  Bickford  v. 
First  Nat.  Bank,  42  111.  238,  89  Am.  Dec.  436;  Baltzen  v.  Nicolay, 
53  N.  y.  470;  Bartlett  v.  Raymond,  139  Mass.  275. 

5  Ante  §  109  (b).  Where  suit  is  started  against  the  agent,  but 
the  principal  subsequently  is  discovered  and  made  a  party,  and 
a  case  Is  established  against  both,  the  plaintiff  must  elect  against 
which  of  the  two  he  "will  ask  judgment.  Pittsburg  Plate  Glass 
Co.  V.  Roquemore   (Tex.  Civ.  App.),  88  S.  W.  449. 

0  Bryan  v.  Brazil,  52  Iowa,  350;  Higgins  v.  Senior,  8  M.  &  W. 
(Eng.)  834;  Mechem  on  Agency,  §  449.  When  an  Invoice  is 
only  evidence  of  a  contract,  and  not  the  contract,  parol  evidence  is 
admissible  to  show  that  a  person  whoso  name  appears  as  seller 
l8  not  a  party.    Holding  v.  Elliott,  5  H.  &  N.  (Eng.)  117. 

TAnte  §  109  (b). 


M 


LIABILITY  OP  AGENT  TO  THIRD  PERSON.  211. 

iiame  of  a  principal.  "Where  the  contract  was  oral,  any 
evidence  would  be  admissible  that  would  tend  to  show  that 
the  third  party  knew  that  he  was  dealing  with  the  agent  in 
a  representative  character ;  and  if  that  fact  could  be  estab- 
lished, the  agent  would  be  relieved  of  liability;®  "Where 
the  contract  is  written,  the  question  as  to  whether  the  agent 
is  bound  would  be  determined  from  a  construction  of  the 
written  instimment. 

In  construing  a  simple  non-negotiable  contract  for  the 
purpose  of  determining  whether  an  agent  should  be  bound 
thereby,  more  liberal  rules  of  construction  prevail  than  in 
the  case  of  sealed  instruments  or  negotiable  paper.®  Thus, 
where  the  writing  states  that  the  contract  is  "on  account 
of,"  or  "in  behalf  of,"  a  principal  named,  the  agent  prob- 
ably would  not  be  bound,  though  his  signature  be  unquali- 
fied.^" And,  so,  where  he  describes  himself  as  "agent," 
"trustee"  or  the  like,  parol  evidence  is  usually  admitted 
to  clear  up  the  ambiguity  thus  created,  and  to  show  that 

8  Steamship  Bulgai'ian  Co.  v.  Transportation  Co.,  135  Mass.  421; 
Cobb  V.  Knapp,  71  N.  Y.  348,  27  Am.  Rep.  51;  Anderson  v.  Timber- 
lake,  114  Ala.  377,  22  South.  431.  An  agent  is  not  liable  on  a  con- 
tract for  his  principal  where  the  other  party  enters  into  the  same 
intending  to  hold  the  principal.  Meade  Plumbing  Co.  v.  Irwin, 
77  Neb.  358,  109  N.  W.  391. 

9  Whitney  v.  Wyman,  101  U.  S.  392;  Goodenough  v.  Thayer,  132 
Mass.  152;  Wheeler  v.  Walden,  17  Neb.  122,  22  N.  W.  346.  Al- 
though an  agent  executes  an  instrument  in  his  own  name  he 
will  not  be  personally  bound  unless  the  language  shows  a  clear 
intent  to  that  effect.  Frambach  v.  Frank,  33  Colo.  529,  81  Pac. 
247. 

10  Andrews  v.  Estes,  11  Me.  267,  26  Am.  Dec.  521;  Simonds  v. 
Heard,  23  Pick.  (Mass.)  120,  34  Am.  Dec.  41;  Rogers  v.  March, 
33  Me.  106;  Smith  v.  Alexander,  31  Mo.  193;  Avery  v.  Dougherty, 
102  Ind.  443,  52  Am.  Rep.  680;  Post  v.  Pearson,  108  U.  S.  418. 


212  THE  LAW  OP  AGENCY. 

the  agent  contracted  in  his  representative  character.'^ 
Other  cases  apply  the  rule  more  strictly,  and  hold  that  even 
in  non-negotiable  simple  contracts,  if  the  agent  engages  ex- 
pressly in  his  own  name  to  perform  obligations,  he  is  re- 
sponsible, notwithstanding  that  he  describes  himself  as 
agent,^^ 

This  question  of  the  construction  of  a  simple  non-nego- 
tiable contract  for  the  purpose  of  determining  whether  the 
agent  is  a  party  thereto,  arises,  it  must  be  remembered, 
only  in  cases  where  the  agent  seeks  to  escape  personal  lia- 
bility. Where  an  undisclosed  principal  seeks  to  enforce 
such  a  contract ;  or  where  the  third  party  elects  to  hold  the 
principal;  extrinsic  evidence  may  always  be  introduced  to 
show  that  the  agent  contracted  in  behalf  of  an  undisclosed 
principal,  notwithstanding  that  on  its  face  the  contract  is 
in  the  name  of  the  agent  and  that  there  is  no  indication  that 
he  acted  in  a  representative  capacity.^^ 

§  134.  Sealed  instruments.  Where  an  agent  executes 
a  sealed  instrument  in  behalf  of  his  principal,  the  latter, 
as  we  have  seen,  will  not  be  bound  by  the  same  unless  he 
appears  upon  the  face  thereof  as  the  party  thereto.^*  The 
question  whether  the  agent  is  personally  bound  must  like- 
wise be  determined  from  a  construction  of  the  instrument. 
Without  again  going  over  the  eases,  which  are  discussed 

iiDeerlng  v.  Thorn,  29  Minn.  120,  12  N.  W.  350;  Peterson  v. 
Homan,  44  Minn.  IGG,  46  N.  W.  303;  Rhone  v.  Powell,  20  Colo.  41, 
36  Pac.  899. 

12  Matthews  v.  Jenkins,  80  Va.  463;  Brown  v.  Bradlee,  156  Mass. 
28,  30  N.  E.  85;  Sirnonds  v.  Heard,  23  Pick.  (Mass.)  120,  34  Am. 
Dec.  41.  See  McDonald  v.  Bond,  195  111.  122,  62  N.  E.  881;  Knick- 
erbocker V.  Wilcox,  83  Mich.  200,  47  N.  W.  123. 

13  Ante  §  100   (a). 
1*  Ante  §  107. 


LIABILITY  OF  AGENT  TO  THIRD  PERSON.  213 

in  the  chapter  relating  to  the  principal's  liability/^  it  may 
be  stated  in  general  terms,  that  an  agent  can  not  escape 
personal  liability  under  a  sealed  instrument  executed,  upon 
its  face,  in  his  name  merely  because  he  is  described  therein 
as  agent  of  another.^^  Nor  will  he  be  relieved  from  liabil- 
ity merely  because  the  instrument  recites  that  he  acts  as 
agent  for  another  in  pursuance  of  authority  given,  or  in 
behalf  of  a  principal  named. ^^  Sealed  instruments,  as  we 
have  seen,  are  strictly  and  technically  construed.^^'  It  may. 
of  course,  happen  that  an  instrument  .will  be  so  executed 
as  to  be  binding  upon  neither  principal  nor  agent,  as  where 
the  principal  is  named  as  the  party,  and  the  instrument  is 
signed  and  executed  by  the  agent  individually.^^ 

§  135.  Negotiable  instruments.  An  agent  is  personally 
liable  upon  a  negotiable  instrument,  though  executed  in  be- 
half of  a  principal,  where  it  appears  upon  the  face  of  the 
same  that  the  agent  is  the  party  thereto. -°  The  instrument 
is  still  deemed  his,  notwithstanding  that  he  describes  him- 
self as  agent  of  another,  or  recites  that  he  executes  the  same 
in  behalf  of  a  principal.^^     As  we  saw  in  considering  the 

16  Ante,  Chap.  X. 

i6Taft  V.  Brewster,  9  Johns.  (N.  Y.)  334,  6  Am.  Dec.  280;  Fvil- 
1am  V.  West  Brookfield,  9  Allen  (Mass.),  1;  Dayton  v.  Warne,  43 
N.  J.  Law,  659. 

17  stinchfield  v.  Little,  1  Me.  231,  10  Am.  Dec.  65;  Elwell  v. 
Shaw,  16  Mass.  42,  8  Am.  Dec.  126. 

18  Ante  §  107. 

19  Abbey  v.  Chase,  6  Cush.  (Mass.)  54;  Whitford  v.  Laidler,  94 
N.  Y.  145,  46  Am.  Rep.  131;  Neufeld  v.  Beidler,  37  111.  App.  34. 

20  Dewitt  V.  Walton,  9  N.  Y.  570;  Casco  Nat.  Bank  v.  Clark,  139 
N.  Y.  307,  34  N.  E.  908;  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass. 
101;  Sparks  v.  Transfer  Co.,  104  Mo.  531,  15  S.  W.  417. 

ziHobson  V.  Hassett,  76  Cal.  203,  18  Pac.  320;  Fiske  v.  Eld^ 
Tidge,  12  Gray  (Mass.),  474;  Ohio  Nat.  Bank  v.  Cook,  38  Ohio  St. 


214  THE  LAW  OF  AGENCY. 

principal's  liability,  the  courts  tend  to  greater  liberality 
in  the  construction  of  negotiable  instruments,  than  in  con- 
struing sealed  instruments,  for  the  purpose  of  determining 
who  is  the  real  party  thereto.^^  So,  in  many  states,  where 
there  is  some  indication  upon  the  face  of  the  instrument 
that  the  agent  acted  in  his  representative  character,  ex- 
trinsic evidence  may  be  introduced  to  show  who  was  in- 
tended to  be  bound.^^  Even  under  this  rule,  however, 
merely  adding  the  designation  ''agent,"  without  naming 
the  principal,  would  not  relieve  the  agent  from  liability 
to  a  purchaser  who  had  no  other  notice  of  the  representative 
character  of  the  signer.^*  It  is  usually  held  that  the  cash- 
ier of  a  bank  will  not  be  personally  liable  on  paper  duly 
signed  by  him  as  "cashier,"  but  the  same  may  be  shown 
to  be  the  obligation  of  the  bank.-'^  The  rule  is  frequently 
extended  to  prudential  officers  of  other  corporations.^^ 

§  136.  Public  officers.  The  rules  governing  the  liability 
of  an  agent,  upon  contracts  executed  in  his  own  name,  do 
not  apply  to  contracts  executed  by  public  officers.  It  i'^ 
generally  held  th.t  a  public  officer  will  never  be  liable  on 
a  contract  made  in  belialf  of  the  government,-^  unless  he 

442;  Coburn  v.  Lodge,  71  Iowa,  581,  32  N.  W.  513;  Robinson  v. 
Bank,  44  Ohio  St.  441,  8  N.  E.  583. 

22  Ante  §  108   (a). 

23  Ante  §  108  (b). 

24Metcalf  V.  Williams,  104  U.  S.  93. 

28  Commercial  Bank  v.  French,  21  Pick.  (Mass.)  486,  32  Am. 
Dec.  280;  Bank  of  ymchester  v.  Slason,  13  Vt.  334;  Dutch  y. 
Boyd.  81  Ind.  Hfi;  Houtrhton  v.  Bank,  26  Wis.  663.  7  Am.  Rep.  107' 

20  Babcock  v.  Beman,  11  N.  Y.  200;  Nichols  v.  Frothingham,  4& 
Me.  220,  71  Am.  Dec.  5;]0;  Ilypcs  v.  Grimn,  89  111.  134,  31  Am.  Rep. 
71. 

2T  Parks  V.  Ross,  11  IJow.  (U.  S.)  362;  Freeman  v.  Otis,  9  Mass. 


LIABILITY  OF  AGENT  TO  THIRD  PERSON".  215 

expressly  pledges  his  personal  credit.-^  This  exemption, 
however,  is  not  always  extended  to  officers  of  public  cor- 
porations.^' 

§  137.  Acting"  without  authority,  (a)  In  general. 
AVhere  an  agent  without  authority  executes  a  contract  in 
the  name  of  a  principal,  the  latter,  of  course,  is  not  obli- 
gated thereby.  Neither  is  the  agent  personally  bound 
■where  he  does  not  appear  as  a  party  to  the  contract.^"  In- 
dependently of  the  contract,  however,  the  agent  becomes 
liable  to  the  third  person,  either  upon  the  theory  of  deceit, 
in  falsely  representing  himself  to  have  authority  ;^^  or 
upon  the  theory  of  breach  of  an  implied  warranty  that  he 
possesses  the  authority  which  he  assumed  to  exereise.^^ 

(b)  Deceit.  "Where  a  person  fraudulently  represents 
that  he  is  the  agent  of  another,  and  as  such  makes  a  contract 
in  the  name  of  his  supposed  principal,  he  is  clearly  guilty 

272,  6  Am.  Dec.  66;  Sparta  School  Tp.  v.  Mendall,  138  lud.  188, 
37  N.  E.  604. 

28  Mechem  on  Public  Officers,   Chap.  VII. 

20  Brown  v.  Bradlee,  156  Mass.  28,  30  N.  E.  85;  City  of  Provi- 
dence V.  Miller,  11  R.  I.  272,  23  Am.  Rep.  453;  Mechem  on  Pub- 
lic Officers,  Chap.  VII. 

30  Johnson  v.  Smith,  21  Conn.  627;  Patterson  v.  Lippincott,  47 
N.  J.  Law,  457,  1  Atl.  506;  Noyes  v.  Loring,  55  Me.  408;  Senter  v. 
Monroe,  77  Cal.  347,  19  Pac.  580;  Cole  v.  O'Brien,  34  Neb.  68,  51 
N.  "W.  316;  White  v.  Madison,  26  N.  Y.  117.  Some  courts  have 
manifested  a  tendency  to  disregard  the  reference  to  the  prin- 
cipal and  to  hold  the  agent  personally.  Roberts  v.  Button,  14  Vt. 
195;  Weare  v,  Gove,  44  N.  H.  196.  See  Terwilllnger  v.  Murphy, 
104  Ind.  32,  3  N.  W.  404;  Solomon  v.  Penoyar,  89  Mich.  11,  50  N. 
W.  644.  This,  however,  is  to  make  a  contract  for  the  parties 
rather  than  to  construe  one  which  they  have  made.  Hall  v.  Cran- 
dall,  29  Cal.  567,  89  Am.  Dec.  64. 

31  Post,  §  137   (b). 
»2Post,  §  137   (c). 


216  THE  LAW  OF  AGENCY. 

of  a  tort,  in  the  nature  of  deceit,  and  will  be  liable  in  dam- 
ages to  the  third  person  with  whom  he  deals.^^  Nor  is  it 
necessary  to  create  liability  that  the  agent  expressly  repre- 
sent that  he  possesses  competent  authority ;  for  if  he  deals 
with  a  third  person  as  one  possessing  such  authority,  and 
fails  to  disclose  his  lack  of  it,  he  will  be  liable  to  the  third 
party  for  any  injury  occasioned.^* 

(c)  Breach  of  warranty.  AVhere  the  agent  acts  in 
good  faith,  under  a  mistaken  belief  that  he  possesses  the 
authority  which  he  assumes  to  exercise,  the  element  of 
fraud  is  eliminated,  and  an  action  sounding  in  tort  could 
not  be  maintained  against  him.  The  third  party,  however, 
would  still  have  a  right  of  action  against  the  agent  upon 
the  theory  that  when  a  person  undertakes  to  act  as  agent 
for  another  he  warrants  possession  of  the  authority  which 
he  assumes  to  exercise,  and  in  the  event  of  exceeding  such 
authority  is  liable  in  damages  for  breach  of  this  implied 
warranty.^^  Liability,  however,  would  not  arise  where  the 
circmnstances  were  such  as  to  negative  existence  of  such  a 
warranty.  Thus,  if  an  agent,  in  good  faith,  discloses  all 
the  facts  upon  which  is  b;'sed  his  assumption  of  authority, 
no  warranty  would  be  implied.^"     So,  it  has  been  held  that 

83Noyes  v.  Loiing,  55  Me.  408;  Ballon  v.  Talbot,  16  Mass.  461, 
8  Am.  Dec.  146;  Duncan  v.  Niles,  32  III.  532;  Dung  v.  Parker,  52 
N.  Y.  494. 

34Kroeger  v.  Pitcairn,  101  Pa.  St.  311,  47  Am.  Rep.  718;  White 
V.  Madison,  26  N.  Y.  117;  Bartlett  v.  Tucker,  104  Mass.  336,  6  Am. 
Rep.  240. 

85  Baltzen  v.  Nicolay,  53  N.  Y.  467;  Patterson  v.  Lippincott,  47 
N.  J.  Law,  457,  1  Atl.  506;  Taylor  v.  Nostrand,  134  N.  Y.  108,  31 
N.  E.  2-16;  Lane  v.  Carr,  156  Pa.  St.  250,  25  Atl.  830;  Seeberger  v. 
McCorralck,  178  111.  404,  53  N.  E.  340;  Anderson  v.  Adams,  43  Ore. 
621,  74  Pac.  215. 

30  Hall  V.  Lauderdale,  40  N.  Y.  72;  Ware  v.  Morgan,  67  Ala.  461; 
Newman  v.  Sylveslcr,  42  Ind.  106;   Michael  v.  .Tones,  84  Mo.  578. 


LIABILITY  OF  AGENT  TO  THIRD  PERSON.  217 

the  agent  would  not  be  liable  for  breach  of  warranty  where, 
unknown  to  him,  the  principal  was  dead  at  the  time  the 
contract  was  entered  into.^^ 

(d)  Damages.  In  case  of  false  representation  of  au- 
thority, or  breach  of  warranty  as  to  its  possession,  the  third 
person  may  recover  damages  for  loss  approximately  result- 
ing therefrom.^^  In  the  case  of  contracts,  the  usual  meas- 
ure would  be  the  damages  which  could  have  been  recovered 
against  the  principal  for  breach  of  the  contract,  had  it 
been  authorized.^^  It  follows  that  if  the  contract  would 
not  have  been  enforceable  against  the  principal,  even  had 
it  been  authorized,  as  where  requisite  legal  formalities  had 
not  been  observed,  no  recovery  can  be  had  against  the 
agent."*" 

§  138.  Liability  for  money  received,     (a)  In  good  faith. 

"Where  money  has  been  received  by  an  agent,  in  good  faith, 
from  a  third  person,  but  under  circumstances — such  as  a 
mistake  of  fact — that  would  have  entitled  the  other  person 
to  reclaim  the  same  had  it  been  paid  to  the  principal  di- 
rectly, the  agent  will  be  liable  for  return  of  the  money.*^ 

sTSmout  V.  Ilbery,  10  M.  &  W.  (Eng.)  1.  If  the  defect  of  au- 
thority arises  from  a  want  of  legal  capacity,  and  if  the  parties 
are  under  a  mutual  mistake  of  the  law,  and  are  both  equally  in- 
formed in  regard  to  the  facts,  there  would  be  no  remedy  against 
the  agent.    Jefts  v.  York,  10  Cush.  (Mass.)  392. 

38  Skaaraas  v.  Finnegan,  32  Minn.  107,  19  N.  W.  729;  Farmers' 
Co-op.  Trust  Co.  v.  Floyd,  47  Ohio  St.  525,  26  N.  E.  110. 

39  Simmons  v.  More,  100  N.  Y.  140,  2  N.  B.  640;  Seeberger  v, 
McCormick,  178  111.  404,  53  N.  E.  340. 

40Baltzen  v.  Nicolay,  53  N.  Y.  467;  Kent  v.  Addicks,  60  C.  C. 
A.  660,  126  Fed.  112.  Where  a  contract  made  by  an  agent  in  the 
name  of  a  principal,  without  authority,  is  void  under  the  statute 
■of  frauds,  the  agent  is  not  liable.  Morrison  v.  Hazzard  (Tex. 
€lv.  App.),  88  S.  W.  385. 

*iMowatt  V.  McLelan,  1  Wend.  (N.  Y.)  173;  O'Connor  v.  Clap- 


218  THE  LAW  OF  AGENCY. 

But  this  liability  ceases  if  the  agent,  before  notice  of  the 
other  party's  claim,  has  paid  the  money  over  to  his  princi- 
pal.*^ Where  the  agent  had  not  disclosed  his  agency,  but 
the  other  party  dealt  with  him  as  a  principal,  payment  over 
to  the  real  principal  has  been  held  no  defense.*^ 

(b)  Wrongfully.  Where  an  agent  acquires  money  tor- 
tiously,  as  by  illegal  exaction  or  fraud,  he  is  guilty  of  a 
pei-sonal  wrong  and  will  be  liable  in  an  action  for  recovery 
of  the  money,  notwithstanding  that  he  may  have  paid  the 
same  over  to  his  principal.** 

§  139.  Money  received  from  principal.  Where  a  prin- 
cipal delivers  money  to  an  agent,  to  be  by  him  paid  over 
to  a  third  person,  the  agent's  duty  of  performance  is  to  the 
principal  alone,  and  there  is  no  privity  of  contract  between 
him  and  the  third  person;  and  until  performance,  the  prin- 
cipal may  revoke  the  authority  and  reclaim  the  money.*" 
But  once  the  agent  promises  the  third  person  to  pay  the 
}noney  to  him,  or  in  any  way  indicates  assent  to  an  appro- 
priation of  the  funds  to  the  latter 's  use,  the  principal's 
right  to  revoke  the  authority  ceases,  privity  of  contract 

ton,  60  Miss.  349;  Smith  v.  Binder,  75  111.  492.  If  the  third  per- 
son elects  to  hold  the  agent  he  waives  his  vig'ht  against  the  prin- 
cipal, and  vice  versa.  See  Eufaula  Grocery  Co.  v.  Bank,  118  Ala. 
408,  24  South.  389. 

"Cabot  V.  Shaw,  148  Mass.  459,  20  N.  E.  99;  Shepard  v.  SheriD, 
43  Minn.  382,  45  N.  W.  718. 

«  Smith  V.  Kelly,  43  Mich.  390,  5  N.  W.  437. 

<U':iliott  V.  Swartwout,  10  Pet.  (U.  S.)  137;  Ripley  v.  Gelston. 
9  Johns.  (N.  Y.)  201;  Moore  v.  Shields,  121  Ind.  2G7,  23  N.  E.  89; 
Hardy  v.  Express  Co.,  182  Mass.  328,  65  N.  E.  375. 

<sTiernan  v.  Jackson,  5  Pet.  (U.  S.)  580;  Seaman  v.  Whitney, 
24  Wend.  (N.  Y.)  200,  35  Am.  Dec.  G18;  Williams  v.  Everett,  14 
East.    (Eng.)    582. 


LIABILITY  OF  AGENT  TO  THIRD  PERSON.  219 

arises  between  tlie  third  person  and  the  agent,  and  the  hit- 
ter is  liable  for  payment  of  the  money .^® 

§  140.  Liability  for  torts,  (a)  In  general.  An  agent 
in  the  performance  of  his  duties  is  bound  to  respect  the 
rights  of  third  persons,  and  can  not  escape  liability  for 
violation  of  those  rights  by  setting  up  the  fact  that  his 
wrongful  acts  were  done  in  behalf  of  his  principal.*^  "No 
man,"  said  the  court  in  a  Louisiana  case,  "increases  or 
diminishes  his  obligations  to  strangers  by  becoming  an 
agent.  "*^  Thus,  an  agent  who,  for  his  principal,  wrong- 
fully takes  or  detains  property  is  liable  in  tort,  notwith- 
standing that  he  acted  in  good  faith,  supposing  the  goods 
to  belong  to  his  principal.*^  So,  an  agent  is  liable  for  tres- 
pass, though  committed  by  him  under  direction  of  his  prin- 
cipal.^*' Since  the  element  of  intent  is  essential  to  fi^aud, 
an  agent  who  acted  in  good  faith  would  not  be  personally 
liable  in  an  action  for  deceit. ^^ 

46Wyman  v.  Smith,  2  Sandf.  (N.  Y.)  331;  Goodwin  v.  Bowden. 
54  Me.  424. 

47  Bennett  v.  Ives,  30  Conn.  329;  Burnap  v.  Marsh,  13  III.  535; 
Blue  V.  Briggs,  12  Ind.  App.  105,  39  N.  E.  885. 

48Delany  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456. 

«Cranch  v.  White,  1  Bing.  (N.  C.)  414;  McPheters  v.  Page,  83 
Me.  234,  22  Atl.  101;  Robinson  v.  Bird,  158  Mass.  357,  33  N.  E. 
391;  Spraights  v.  Hawley,  39  N.  Y.  441,  100  Am.  Dec.  452;  Kear- 
ney V.  Glutton,  101  Mich.  106,  59  N.  W.  419.  But  see  Leuthold  v. 
Fairchild,  35  Minn.  99,  27  N.  W.  503;  Abernathy  v.  Wheeler,  92 
Ky.  320,  17  S.  W.  858. 

50  Mill  V.  Hawker  L.  R.,  10  Ex.   (Eng.)  92. 

BiHedden  v.  Briffin,  136  Mass.  229,  49  Am.  Rep.  25;  Weber  v. 
Weber,  47  Mich.  569,  11  N.  W.  389;  Hedin  v.  Institution,  62  Minn. 
146,  64  N.  W.  158.  Where  the  tort  is  committed  within  the  scope 
of  the  agent's  authority,  or  is  ratified,  the  principal,  of  course, 
is  also  liable.     Ante  §  119. 


220  THE  LAW  OF  AGENCY. 

(b)  Nonfeasance.  It  is  stated  as  the  rule  that  an  agent 
is  not  liable  to  third  persons  for  nonfeasance — mere  failure 
to  aet.^-  This  rule  is  but  a  further  application  of  the  doc- 
trine that  a  man  neither  increases  nor  diminishes  his  obli- 
gations to  strangers  by  becoming  an  agent.  Where  a  per- 
son is  emplo3''ed  to  perform  service  for  another  he  owes  no 
duty  to  strangers  to  enter  upon  performance,  and  hence  is 
not  liable  to  them  for  failure  to  do  so.  His  obligation, 
which  is  contractual,  is  solely  to  his  principal.^^  Thus, 
where  an  agent,  in  charge  of  a  plantation,  neglected  to 
keep  open  a  drain,  it  was  held  that  his  duty  to  do  so  was 
«olely  to  the  principal,  and  that  he  was  not  liable  for  dam- 
ages resulting  to  an  adjoining  owner.^*  So,  where  an  agent, 
who  had  let  a  house  for  his  principal,  authorized  the  tenant 
to  erect  a  cooking  range  upon  the  premises,  he  was  held  not 
liable  for  damages  to  a  neighboring  proprietor  caused  by 
use  of  the  range. ^^  And  an  agent  charged  with  the  duty 
of  keeping  a  house  in  repair  is  not  liable  to  a  third  person 
for  injury  caused  by  his  failure  to  perform  this  duty.^^ 

"Where,  however,  the  agent  enters  upon  performance  of 
the  service,  he  assumes  a  duty  to  the  public  to  exercise  due 
care,  and  becomes  liable  for  acts  either  of  omission  or  com- 

52  story  on  Agency,  §  308. 

03  Denny  v.  Manhattan  Co.,  2  Denio  (N.  Y.),  115;  Hill  v.  Cav- 
erly,  7  N.  H.  215.  2G  Am.  Dec.  735;  Feltus  v.  Swan,  62  Miss.  415, 
Delany  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456. 

64  Feltus  V.  Swan,  supra. 

65  Labadie  v.  Hawley,  Gl  Tex.  177,  48  Am.  Rep.  278. 

B«  Delany  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456; 
Dean  v.  Brock,  11  Ind;.  App.  507,  38  N.  E.  829;  Murray  v.  Usher, 
117  N.  Y.  542,  23  N.  E.  564.  An  agent  charged  with  superintend- 
ence of  the  erection  of  a  grandstand  has  been  held  not  liable  to 
third  persons  for  nog]i'j;ontly  permitting  the  erection  of  a  de- 
fnctive  sfrufture.  Van  AntwcM'i)  v.  Linton,  89  IIuQ  (N.  Y.),  417, 
aflirtiiod,  157  N.   Y.  716,  53   N.  E.  1133. 


LIABILITY  OF  AGENT  TO  THIRD   PERSON.  221 

mission."  Thus,  where  an  agent,  having  charge  of  a  tene- 
ment, directed  the  city  water  to  be  turned  on,  but  neglected 
to  see  that  the  pipes  were  in  proper  condition,  and,  in  con- 
sequence, the  water  overflowed  to  the  injury  of  one  of  the 
tenants,  the  agent  was  held  personally  liable.^*  Said  the 
court  in  a  Massachusetts  case :  "  If  the  agent  once  actually 
undertakes,  and  enters  upon,  the  execution  of  a  particular 
work,  it  is  his  duty  to  use  reasonable  care  in  the  manner  of 
executing  it,  so  as  not  to  cause  any  injury  to  third  persons. 
The  fact  that  a  wrongful  act  is  a  breach  of  a  contract  be- 
tween the  wrongdoer  and  one  person  does  not  exempt  him 
from  responsibility  for  it,  as  a  tort,  to  third  persons  injured 
thereby."^®  Upon  the  theory,  possibly,  that  the  under- 
taking has  been  entered  upon,  some  of  the  courts  incline 
to  hold  to  personal  liability  an  agent,  in  charge  of  a  build- 
ing, who  neglects  to  keep  the  same  in  repair.^^ 

67  Bell  V.  Josselyn,  3  Gray  (Mass.),  309,  63  Am.  Dec.  741;  Os- 
borne V.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437;  Lattman  v. 
Barrett,  62  Mo.  159.  Misfeasance  is  the  improper  doing  of  an  act 
which  the  agent  might  lawfully  do,  and  where  an  agent  fails  to 
use  reasonable  care  in  the  performance  of  his  duty  he  is  per- 
sonally responsible  to  a  third  person  injured  thereby.  Southern 
Ry.  Co.  V.  Rowe,  2  Ga.  App.  557,  59  S.  E.  462. 

58  Bell  V.  Josselyn,  3  Gray  (Mass.),  309,  63  Am.  Dec.  741. 
Where  an  agent,  having  complete  control  of  a  tenement  house, 
constructs  a  walk,  but  leaves  a  hole  in  the  same,  into  which  a 
person,  without  fault,  falls,  the  agent  is  guilty  of  a  misfeasance, 
and  is  liable.    Carson  v.  Quinn,  127  Mo.  App.  525,  105  S.  W.  1088. 

58  Osborne  v.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437. 

60  Mayer  v.  Building  Co.,  104  Ala.  611,  16  South.  620;  Ellis  v. 
McNaughton,  76  Mich.  237,  42  N.  W.  1113;  Baird  v.  Shipman,  132 
111.  16,  23  N.  E.  384.  The  agent  of  a  non-resident  owner  of  a 
building,  in  complete  charge  thereof,  has  been  held  liable  for  in- 
juries resulting  from  his  negligent  failure  to  repair  an  unsafe 
veranda  railing.  Lough  v.  John  Davis  &  Co.,  35  Wash.  449,  77 
Pac.  732;   Saine,  30  Wash.  204,  70  Pac.  491. 


222  THE  LAW  OF  AGENCY. 

II.  Liability  of  Third  Person  to  Agent. 

§  141.  On  contract,  (a)  In  general.  A  contract,  of 
whatever  character,  properly  executed  in  the  name  of  the 
principal,  is,  of  course,  the  principal's  contract,  and  the 
agent  acquires  no  rights  thereunder  against  the  third  per- 
son.®^ Where,  however,  a  sealed  or  negotiable  instrument 
is  construed  to  be  the  personal  contract  of  the  agent,  h" 
alone,  as  we  have  seen,  is  obligated  thereby ,®2  and,  as  a  con- 
sequence, has  the  sole  right  to  enforce  the  same  against  th«^ 
other  party. ^^  "Where  a  simple  non -negotiable  contract  i-; 
executed  in  the  name  of  an  agent,  but  in  behalf  of  a  prin 
cipal,  the  latter,  as  we  have  seen,  may  supersede  the  agent 
as  a  party  to  the  contract  and  enforce  the  same  against  the 
third  person.®*  But  until  thus  superseded,  the  agent  may 
enforce  the  contract.^'^  Thus,  an  agent  who  sells  goods 
for  an  undisclosed  principal  may  recover  the  price;  ^®  and 
one  who  sends  goods  or  money  of  his  principal  by  express, 
contracting  in  his  o^vn  name,  may  sue  for  nondelivery  or 
other  breach  of  the  contract.^'^ 

"iLamson  &  Goodnow  Mfg.  Co.  v.  Russell,  112  Mass.  387;  Sharp 
V.  Jones,  18  Ind.  314,  81  Am.  Dec.  359. 

62  Ante  §§  134,  135. 

63Pentz  V.  Stanton,  10  Wend.  (N.  Y.)  271,  25  Am.  Dec.  558; 
Stackpole  v.  Arnold,  11  Mass.  27,  6  Am.  Dec.  150;  Pease  v.  Peasf^, 
35  Conn.  131,  95  Am.  Dec.  225;  Taft  v.  Brewster,  9  Johns.  (N.  Y.) 
334;  Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101. 

9*  Ante  §  125  (a). 

«B  CoUnirn  v.  Phillips,  13  Gray  (Mass.),  64;  Alsop  v.  Caines,  10 
Johns.  (N.  Y.)  39G;  U.  S.  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  9r, 
Am.  Dec.  519;  Simons  v.  Wittman,  113  Mo.  App.  357,  88  S.  W.  791. 

86  Alsop  V.  Caines,  10  Johns.  (N.  Y.)  39G. 

«7  nianchard  v.  Page,  8  Gray  (Mass.),  281;  Finn  v.  Railroad 
Corp.,  112  Mass.  524,  17  Am.  Rep.  128;  Snider  v.  Express  Co.,  77 
Mo.  523;  Carter  v.  Railway  Co.,  Ill  Ga.  38,  3G  S.  E.  308. 


LIABILITY  OP  AGENT  TO  THIRD  PERSON.  223 

(b)  Interest  in  subject  matter.  Ordinarily,  an  agent's 
right  to  sue  on  a  simple  non-negotiable  contract  is  sub- 
ordinate to  the  superior  right  of  the  principal.^*  Where, 
however,  the  agent  has  a  vested  interest  in  the  subject  mat- 
ter, such  as  a  lien  for  commissions,  his  right  of  action  will 
be  protected  against  the  principal.®^  So,  the  existence  of 
a  special  interest  or  property  in  goods  may  create  a  right 
of  action  in  the  agent  against  third  persons.""  Thus,  an 
agent  who  has  a  special  interest  in  goods,  by  reason  of  ad- 
vances made  for  payment  of  freight,  may  maintain  an  ac- 
tion against  a  carrier  for  negligently  causing  their  injury."^ 

(c)  Measure  of  damages.  As  the  agent  would  hold  the 
amount  recovered  in  trust  for  his  principal,  the  measure 
of  damages  in  an  action  by  the  agent  would  be  the  same 
as  in  an  action  by  the  principal.^^ 

§  142.  Defenses.  "Where  an  agent  sues  on  a  contract, 
made  in  behalf  of  his  principal,  the  defendant  may  avail 
himself  of  any  defense  that  would  be  good  against  the 
principal,^^  for  whose  benefit,  after  all,  the  action  is 
brought;  and  also  of  any  defense  good  against  the  agent, 
who  is  the  plaintiff  of  record.^* 

ssvisher  v.  Yates,  11  Johns.  (N.  Y.)  23;  Schaefer  v.  Henkel, 
75  N.  Y.  378;  Ludwig  v.  Gillespie,  105  N.  Y.  653,  11  N  .E.  835; 
Kelly  V.  Munson,  7  Mass.  318. 

69  Rowe  V.  Rand,  111  Ind.  206,  12  N.  E.  377. 

70Toland  v.  Murray,  18  Johns.  (N.  Y.)  24;  Groover  v.  Warfield, 
50  Ga.  644;  Graham  v.  Duckwall,  8  Bush.  (Ky.)  12;  Minturn  v. 
Main,  7  N.  Y.  220. 

71  Steamboat  Co.  v.  Atkins,  22  Pa.  St.  522. 

72  U.  S.  Tel.  Co.  V.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519; 
Groover  v.  Warfield,  50  Ga.  644;  Evit  v.  Bancroft,  22  Ohio  St.  172. 

73Mechem  on  Agency,  §  762;  Bliss  v.  Sneath,  103  Cal.  43,  36 
Pac.  1029. 

74  Holden  v.  Railway  Co.,  73  Vt.  317,  50  AU.  1096, 


224  THE  LAW  OF  AGENCY. 

§  143.  Professed  agent  real  principal.  Where  a  per- 
son, professing  to  be  agent  of  a  designated  principal,  makes 
a  contract  in  the  name  of  the  latter,  it  seems  clear  that  he 
could  not  enforce  the  contract  against  the  other  party. 
Should  the  other  party,  however,  with  knowledge  that  the 
professed  agent  is  the  real  principal,  acquiesce  in  part  per- 
formance, he  probably  would  be  bound  by  the  contract.'"' 
So,  if  a  person  professes  to  contract  in  behalf  of  an  un- 
named principal,  the  other  party,  since  he  enters  into  such 
a  contract,  apparently  is  indifferent  as  to  the  identity  of 
the  person  to  whom  he  is  bound,  and  hence  there  seems  no 
objection  to  the  agent  disclosing  himself  as  principal,  and 
enforcing  the  contract."  The  question,  apparently,  has 
not  been  raised  in  the  American  decisions. 

§  144.  Liability  for  money.  Where  an  agent  pays 
money  to  a  third  person  under  a  mistake  of  fact,  or  fraudu- 
lent inducement,  he  may  recover  the  same  in  an  action  in 
his  own  name."^ 

§  145.  Liability  for  torts.  An  agent  who  is  in  posses- 
sion of  goods,  or  who  has  a  special  property  therein,  may 
maintain  an  action  against  third  persons  for  violation  of 
his  right  of  property  or  possession.'^  So,  an  action  will  lie 
on  behalf  of  an  agent  against  a  person  who  maliciously  and 
without  cause  induces  his  principal  to  discharge  him.'^" 

70  Rayner  v.  Grote,  15  M.  &  W.  (Eng.)  359;  Whiting  v.  William 
H.  Crawford  Co.,  93  Md.  390,  49  Atl.  G15. 
7c  Sfhmaltz  v.  Avery,  16  Q.  B.   (Eng.)   655. 

77  Kont  V.  Bornstein,  12  Allen  (Mass.),  342. 

78  story  on  Agency,  §  416;  Robinson  v.  Webb,  11  Bush.  (Ky.) 
464;  Taylor  v.  Hayes,  63  Vt.  475,  21  Atl.  610;  Mechanics'  &  Trad- 
ers' Bank  v.  Bank,  60  N.  Y.  40;  Beyer  v.  Bush,  50  Ala.  19.  Ad 
agent  who  sells  on  commission  may  recover  for  libelous  state- 
ments causing  loss  of  sales.    Weiss  v.  Whittemore,  28  Mich.  366. 

70  Moran  v.  Dunijhy,  177  Mass.  485,  59  N.  E  125;  Curran  v. 
Galen,  152  N.  Y.  33,  46  N.  E.  297. 


PART  V. 

RIGHTS  A1S[D  LIABILITIES  BETWEEI^ 
PEIIS^CJIPAL  AlsD  AGENT. 


CHAPTER  XIV. 

OBLIGATION  OF  AGENT  TO  PRINCIPAL. 

14G.  In  general. 

147.  Duty  to  obey  instructions. 

(a)  Express  instructions. 

(b)  Implied  instructions. 

148.  Justification  for  disobedience. 

(a)  Emergency. 

(b)  Illegal  act. 

(c)  Ambiguous    instructions. 

(d)  Factor's  rights. 

149.  Duty  to  exercise  care  and  diligence. 

(a)  In  general. 

(b)  Gratuitous  agent. 

150.  Duty  to  act  in  good  faith. 

(a)  In  general. 

(b)  Acting  as  agent  and  party. 

(c)  Acquiring  adverse  interest. 

(d)  May  not  deny  title. 

(e)  May  not  make  a  profit. 

(f)  Failure  to  give  notice. 

151.  Duty  to  account. 

(a)  In  general. 

(b)  Duty  to  pay  over. 

(c)  Demand. 

152.  Subagents. 
15 


226  THE  LAW  OF  AGENCY. 

§  146.  In  general.  The  duties  and  obligations  of  an 
agent  to  his  principal  are  contractual  in  nature  and  are 
founded  upon  the  contract  of  employment  between  him  and 
the  principal.  Broadly  stated,  an  agent  owes  to  his  prin- 
cipal, by  virtue  of  the  relation  between  them,  the  duty  to 
obey  instructions,  to  exercise  care  and  diligence,  to  act  in 
good  faith,  and  to  account  for  the  proceeds  of  his  agency. 

§  147.  Duty  to  obey  instructions,  (a)  Express  instruc- 
tions. "Where  an  agent  acts  under  express  instructions, 
it  is  his  duty  to  follow  the  same,  and  he  will  be  liable  for 
damages  resulting  from  a  voluntary  deviation,  notwith- 
standing that  the  contrary  course,  which  he  followed,  was 
reasonable,  and  intended  for  the  principal's  benefit.^  Nor 
will  it  be  competent  to  shoAV  that  such  deviation  was  not 
material,  except  fur  the  purpose  of  proving  that  it  did  not 
contribute  to  the  loss  sustained.^  Thus,  where  an  agent 
was  directed  to  remit  money  by  mail  in  bills  of  $50  or  $100, 
and  he  remits  in  bills  of  smaller  denominations,  which  were 
not  received,  the  agent  was  held  liable.^  *'It  is  not  suffi- 
cient," said  the  court,  "that  the  deviation  was  not  material, 
if  it  appears  that  the  party  giving  the  instructions  regarded 
them  as  material,  unless  it  be  shown  affirmatively  that  the 
deviation  in  no  manner  contributed  to  the  loss.  This  may 
be  a  difficult  task  in  a  ease  like  the  present,  but  the  defend- 
ant voluntarily  assumed  it  when  he  substituted  his  own 

1  Whitney  v.  Express  Co.,  104  Mass.  152,  6  Am.  Rep.  207;  Fullor 
V.  Ellis,  39  Vt.  345,  94  Am.  Dec.  327;  Blot  v.  Boiceau,  3  N.  Y.  7S. 
51  Am.  Dec.  345;  Butts  v.  Phelps,  79  Mo.  302;  Dazey  v.  Roleau, 
111  111.  App.  367;  Coker  v.  Roper,  125  Mass.  577;  Rechtscherd  v. 
Bank,  47  Mo.  181. 

2  Walker  v.  Walker,  5  Heisk.  (Tenn.)  425;  Adiams  v.  Robinson, 
C5  Ala.  586. 

•  Wilson  V.  Wilson.  26  Pa.  St.  393. 


OBLIGATION  OP  AGENT  TO  PRINCIPAL.  227 

plan  for  that  prescribed  by  the  plaintiff. "  *  So,  where  an 
agent  is  instructed  to  send  money  by  draft  or  express,  and 
he  sends  it  in  currency,  or  by  check,  he  will  be  liable  for 
the  amount,  if  loss  occurs.^  An  agent  instructed  to  insure 
property  will  be  liable  for  a  loss  if  he  neglects  to  do  so ;  "^ 
one  directed  to  sell  shares  when  they  reach  a  certain  price, 
will  be  liable  for  any  profit  lost  through  his  failure  to  obey 
the  instruction ;  "^  and  an  agent  instructed  to  store  goods  iii 
a  particular  warehouse,  or  to  ship  them  by  a  designated 
carrier,  will  be  liable  for  their  loss,  if  he  stores  them  in  a 
different  warehouse,  or  ships  them  by  some  other  carrier.^ 
An  agent  who  parts  with  the  goods  of  his  principal,  con- 
trary to  instructions,  may  be  liable  for  conversion,  as  well 

4  Wilson  V.  Wilson,  supra. 

B  Walker  v.  Walker,  5  Heisk.  (Tenn.)  425;  Foster  v.  Preston, 
8  Cow.  (N.  Y.)  198;  Kerr  v.  Cotton,  23  Tex.  411.  Where  an  agent, 
directed  to  send  a  claim  to  a  designated  person  for  collection, 
sends  it  to  some  other  person,  he  will  be  liable  if  loss  occurs. 
Butts  V.  Phelps,  79  Mo.  302. 

6  Shoenfeld  v.  Fleisher,  73  111.  404;  Sawyer  v.  Mayhew,  51  Me. 
398.  So,  where  the  agent  of  an  insurance  company  neglects  to 
cancel  a  policy,  as  directed,  he  will  be  liable  for  the  amount  the 
company  is  forced  to  pay.  Franklin  Ins.  Co.  v.  Sears,  21  Fed. 
290;  Phoenix  Ins.  Co.  v.  Frissell,  142  Mass.  513,  8  N.  E.  348.  But 
where  a  factor  neglected  to  sell  property  as  directed,  and  the 
same  was  afterwards  destroyed  by  fire,  the  delay  was  held  not  to 
be  the  proximate  cause  of  the  loss.  Lehman  v.  Pritchett,  84  Ala. 
512,  4  South.  601. 

7  Bertram  v.  Godfrey,  1  Knapp,  P.  C.  (Eng.)  381.  So,  where  an 
agent,  authorized  to  sell  for  a  specified  price,  sells  for  a  less  price, 
he  is  liable  for  the  difference.  Serjeant  v.  Blunt,  16  Johns.  (N. 
Y.)  74;  Switzer  v.  Connett,  11  Mo.  88.  But  see  Blot  v.  Boiceau, 
3  N.  Y.  78,  51  Am.  Dec.  345;  Dalby  v.  Stearns,  132  Mass.  230. 

8  Wilts  V.  Morrall,  66  Barb.  (N.  Y.)  511;  Johnson  v.  New 
York  Central  Transp.  Co.,  33  N.  Y.  610,  88  Am.  Dec.  416. 


228  THE  LAW  OF  AGENCY. 

as  upon  contract.*  Thus  where  an  agent,  intrusted  with 
a  note  for  negotiation,  and  instructed  not  to  part  with 
it  except  upon  payment  of  the  money,  delivered  it  to  an- 
other for  the  purpose  of  getting  it  discounted,  and  the  lat- 
ter appropriated  the  proceeds,  the  agent  was  held  liable 
for  conversion.^" 

(b)  Implied  instructions.  Where  no  specific  instruc- 
tions are  given,  an  agent  necessarily  must  exercise  some 
discretion,  and  would  be  liable  only  for  failure  to  use  due 
care  and  diligence  in  safeguarding  the  interests  of  his  prin- 
cipal.^^ Limitations,  however,  upon  his  discretion  are  some- 
times implied  from  the  nature  of  the  agency,  and  he  is 
bound  to  keep  within  them.^-  Thus,  an  agent  to  collect  is 
ordinarily  limited,  by  implication,  to  a  collection  in  cash ;  ^^ 
and  one  authorized  to  sell,  must  usually  sell  for  cash,  and 
hence  would  be  liable  for  loss  caused  by  his  acceptance  of 
a  check.^*  A  well  established  usage  may  either  limit  or  ex- 
tend the  agent's  obligation.^^ 

§  148.  Justification  for  disobedience,  (a)  Emergency. 
In   the   face  of   sudden   emergency,    or   other   condition, 

»  Spencer  v.  Blackman,  9  Wend.  (N.  Y.)  167;  Chase  v.  Basker- 
ville,  93  Minn.  402,  101  N.  W.  950;  Scott  v.  Rogers,  81  N.  Y.  676. 

10  Laverty  v.  Snethen,  68  N.  Y.  523,  23  Am.  Rep.  184. 

11  Post  §  149. 

12  Bailey  v.  Bensley,  87  111.  556;   Story  on  Agency,  §  189. 
isLangdon  v.  Potter,  13  Mass.  319;  Robinson  v.  Anderson,  lOd 

Ind.  152,  6  N.  E.  12;  Pitkin  v.  Harris,  69  Mich.  133,  37  N.  W.  61. 

14  Harlan  v.  Ely,  68  Cal.  522,  9  Pac.  947;  Broughton  v.  Silloway, 
114  Mass.  71,  19  Am.  Rep.  312.  Where  an  agent,  though  author- 
ized to  sell  land  "on  such  terms  as  to  him  shall  seem  meet,"  ac- 
cepts payment  in  bonds,  which  prove  worthless,  he  is  liable  for 
the  money  he  should  have  received.  Paul  v.  Grimm,  165  Pa.  St. 
139,  30  Atl.  721. 

16  Ante,  Chap.  IX. 


OBLIGATION  OF  AGENT  TO  PKINCIPiVL.  229 

where  deviation  from  instructions  becomes  necessary  to 
protect  the  principal's  interest,  the  law  implies  authority 
in  the  agent  to  make  reasonable  deviation.^"  Thus,  if  goods 
are  perishable,  and  in  danger  of  immediate  loss,  an  agent 
to  prevent  such  loss  may  deviate  from  instructions  as  to 
the  tiine,  place  or  terms  of  sale/^  So,  an  agent  instructed 
to  deposit  goods  in  a  particular  place,  may  deviate  from  in- 
structions, upon  learning  of  facts  wliich  raise  reasonable  ap- 
prehensions for  the  safety  of  the  goods  if  deposited  in  such 
place.^®  And  if,  without  fault  of  the  agent,  compliance 
with  instructions  becomes  impossible,  he,  of  course,  is  re- 
lieved from  liability.^^ 

(b)  Illegal  act.  If  an  agent  is  instructed  to  perform 
an  illegal  act,  he  is  not  liable  for  disobedience  of  such  in- 
struction; and,  so,  an  agent  employed  to  make  an  illegal 
contract  will  not  be  liable  in  damages  for  failure  to  per- 
form.2° 

(c)  Ambiguous  instructions.  Where  instructions  are 
so  ambiguous  as  to  be  susceptible  of  more  than  one  inter- 
pretation, and  the  agent  in  good  faith  adopts,  and  acts 
upon,  an  interpretation  different  from  that  intended  by 
the  principal,  he  will  not  be  liable  for  his  misunderstand- 
ing of  their  meaning.^^ 

isGreenleaf  v.  Moody,  13  Allen  (Mass.),  363;  Foster  v.  Smith, 
2  Cold.  (Tenn.)  474,  88  Am.  Dec.  604;  Bartlett  v.  Sparkman,  95 
Mo.  136,  8  S.  W.  406. 

"  Jarvis  v.  Hoyt,  2  Hun  (N.  Y.),  637. 

isDrummond  v.  Wood,  2  Caines  (N.  Y.),  310. 

18  Weakley  v.  Pearce,  5  Heisk.  (Tenn.)  401;  Greenleaf  v.  Moody, 
13  Allen  (Mass.),  363. 

20  Brown  v.  Howard,  14  Johns.  (N.  Y.)  119;  Davis  v.  Bargar,  57 
Ind.  54.  In  the  case  of  an  illegal  contract,  since  the  principal 
could  have  acquired  no  rights  under  it,  he  suffers  no  damage  by 
the  agent's  default. 

21  Pickett  V.  Pearsons,  17  Vt.  470;   Bessent  v.  Harris,  63  N.  C. 


230  THE  LAW  OF  AGENCY. 

(d)  Factor's  rights.  Where  a  factor  makes  advances 
upon  goods,  and  acquires  a  lien  upon  them  for  reimburse- 
ment, and  the  principal  fails  to  repay  the  advances,  upon 
due  notice,  the  factor  may  disregard  instructions  as  to  time 
and  terms  of  sale,  which,  if  followed,  would  impair  the 
value  of  his  security.^^ 

§  149.  Duty  to  exercise  care  and  diligence,  (a)  In 
general.  It  is  the  law  that  an  agent,  by  accepting  his 
appointment,  impliedly  undertakes  to  exercise  in  the  per- 
formance of  his  duties  that  degree  of  skill,  care  and  dili- 
gence which  the  nature  of  the  undertaking,  and  the  cir- 
cumstances of  performance,  reasonably  demand,  and  which 
is  ordinarily  exercised  by  persons  of  usual  capacity  and 
prudence  engaged  in  similar  transactions.-^  He  is  not  an 
insurer  of  the  success  of  his  undertaking,  but  is  liable  only 
for  loss  that  results  from  his  failure  to  exercise  a  reason- 
able degree  of  care  and  skill. ^*     Thus,  an  agent  authorized 

542;  Minnesota  Linseed  Oil  Co.  v.  Montague,  65  Iowa,  67,  21  N.  W- 
184;  Falksen  v.  Falls  City  State  Bank,  71  Neb.  29,  98  N.  W.  425. 

22  Brown  v.  McGran,  14  Pet.  (U.  S.)  479;  Parker  v.  Brancker, 
22  Pick.  (Mass.)  40;  Weed  v.  Adams,  37  Conn.  378;  Davis  v.  Kobe, 
36  Minn.  214,  30  N.  W.  6G2.  So,  generally,  in  cases  of  agency 
coupled  with  an  interest,  unreasonable  instructions,  detrimental 
to  the  agent's  interests,  may  be  disregarded,  W.  W.  Gordon  & 
Co.  V.  Cobb,  4  Ga.  App.  49,  60  S.  E.  821. 

23Heinemann  v.  I-Ieard,  50  N.  Y.  35;  Whitney  v.  Martine,  88  N. 
Y.  535;  Leigh  ton  v.  Sargent,  27  N.  H.  460;  Small  v.  Howard,  128 
Mass.  131,  35  Am.  Rep.  363;  Steiner  v.  Clisby,  103  Ala.  181,  15 
South.  612;  Isham  v.  Parker,  3  Wash.  St.  755,  29  Pac.  835. 

z*  Page  V.  Wells,  37  Mich.  415.  In  the  case  of  a  del  credere 
agency,  there  Is  a  guarantee  of  any  debt  arising  through  tlie 
agency,  and  the  del  credere  Agent  is,  therefore,  absolutely  liable 
for  payment  of  the  same.  Swan  v.  Nesraith,  7  Pick.  (Mass.)  220, 
19  Am.  Dec.  282;  Lewis  v.  Brehmo.  ?,?,  Md.  412,  3  Am.  Rep.  190. 


OBLIGATION  OF  AGENT  TO  PRINCIPAL,.  231 

to  effect  insurance  upon  his  principal's  property,  must  use 
such  care  as  a  reasonably  prudent  person  would  exercise 
in  the  selection  of  an  underwriter  and  of  a  suitable  policy.^^ 
An  agent  authorized  to  invest  money  must  use  reasonable 
care  in  the  selection  of  adequate  security ;  ^^  and  an  agent 
authorized  to  sell  on  credit,  must  exercise  proper  judgment 
in  his  choice  of  purchasers.^'^  So,  an  agent  to  collect  money, 
must  act  with  diligence,  and  avail  himself  of  the  usual 
means  for  enforcing  payment ;  ^^  and  in  the  case  of  com- 
mercial paper,  must  take  all  requisite  steps  to  protect  the 
rights  of  the  principal;  ^^  and  after  collection,  must  use 
reasonable  care  and  diligence  in  transmission  of  the  funds 
to  his  principal.^" 

If  an  undertaking  be  one  that  requires  for  its  proper  per- 
formance the  exercise  of  expert  or  professional  knowledge 
and  skill,  an  agent  who  assumes  performance,  must  bring 
to  the  undertaking  such  knowledge  and  skill  as  is  possessed 

25  strong  V.  High,  2  Rob.   (La.)  103,  38  Am.  Dec.  195. 

26McFarland  v.  McClees  (Pa.),  5  Atl.  50;  Bank  of  Owensboro 
V.  Western  Bank,  13  Bush.  (Ky.)  526,  26  Am.  Rep.  211;  Bannon  v. 
Warfield,  42  Md.  22.  An  agent  authorized  to  invest  his  principal's 
money  is  bound  not  only  to  act  in  good  faith,  but  to  exercise  dili- 
gence and  such  skill  as  is  ordinarily  possessed  by  persons  of  com- 
mon capacity  engaged  in  the  same  business.  DeHart  v.  DeHart, 
70  N.  J.  Eq.  774,  67  Atl.  1074. 

27  Greeley  v.  Bartlett,  1  Greenl.  (Me.)  172,  10  Am.  Dec.  54; 
Phillips  V.  Moir,  69  III.  155;  Frick  &  Co.  v.  Larned,  50  Kan.  776, 
32  Pac.  383. 

28  Allen  V.  Suydam,  20  Wend.  (N.  Y.)  321,  32  Am.  Dec.  555; 
Wiley  V.  Logan,  95  N.  C.  358;  Buell  v.  Chapin,  99  Mass.  594,  97 
Am.  Dec.  58;  Reed  v.  Northrup,  50  Mich.  442,  15  N.  W.  543. 

29  First  Nat.  Bank  v.  Fourth  Nat.  Bank,  77  N.  Y.  320,  33  Am. 
Rep.  618;  Chapman  v.  McCrea.  63  Ind.  360. 

80  Morgan  v.  Richardson,  13  Alien  (Mass.),  410;  Buell  v.  Chapin, 
09  Mass.  594,  97  Am.  Dec.  58. 


232  THE  LAW  OF  AGENCY.* 

by  competent  men  engaged  in  a  like  trade  or  calling.'^ 
Thus,  an  attorney  or  physician  would  be  liable  for  damages 
caused  through  a  failure  to  possess,  or  apply,  such  knowl- 
edge and  skill  as  is  ordinarily  possessed  by  competent  men 
in  his  profession ;  ^^  but  not  for  mere  errors  of  judgment 
which  may  occur  in  spite  of  proper  professional  attain- 
ment.^^ Where,  however,  a  person  who  does  not  hold  him- 
self out  as  an  expert  is  engaged  to  render  services,  for 
which  ordinarily  an  expert  is  employed, — as  where  a  non- 
professional man  is  called  upon  to  aid  in  sickness,  or  in 
the  trial  of  a  case, — there  clearly  is  no  undertaking  on  his 
part  to  bring  to  the  performance  of  the  service  the  knowl- 
edge and  skill  of  an  expert,  and  hence  he  will  not  be  liable 
for  failure  to  exercise  the  same.^* 

(b)  Gratuitous  agent.  Where  an  agency  is  gratuitous, 
there  is  no  obligation  upon  the  agent  to  start  upon  per- 
formance, and  hence  no  damages  can  be  recovered  for  his 
failure  to  do  so.^^  Having  entered  upon  performance, 
however,  his  obligations  become  practically  the  same  as 
those  of  a  paid  agent;  and  he  will  be  liable  for  failure  to 
obey  instructions,  or  to  exercise  the  degree  of  skill  or  care 
deemed  to  be  reasonable  under  the  circumstances  of  the 

81  Leigh  ton  v.  Sargent,  27  N.  H.  460,  59  Am.  Dec.  388;  Varnum 
V.  Martin,  15  Pick.  (Mass.)  440;  Stanton  v.  Bell,  9  N.  C.  145,  11 
Am.  Dec.  744. 

32  Wilson  V.  Russ,  20  Me.  421;  Stimpson  v.  Sprague,  6  Greenl. 
(Me.)  470;  O'Barr  v.  Alexander,  37  Ga.  195;  Stevens  v.  Walker. 
55  111.  151;  Kepler  v.  Jessup,  11  Ind.  App.  241,  37  N.  E.  655; 
Jamison  v.  Weaver,  81  Iowa,  212,  46  N.  W.  996;  Small  v.  Howard, 
128  Mass.  131,  35  Am.  Rep.  363. 

33  Watson  v.  Muirhead,  57  Pa.  St.  161,  98  Am.  Dec.  213;  Marsh 
V.  Whitmore,  21  Wall.(U.  S.)  178;  Citizens',  etc.,  Ass'n  v.  Friedley. 
123  Ind.  143.  23  N.  E.  1075. 

8*  Felt  v.  School  District.  24  Vt.  297;  Mechem  on  Agency,  §  496. 
3''Thornf'  v.  Docs,  4  .Tohns.  (N.  Y.)  84;  Anson  on  Contract,  333 


OBLIGATION  OF  AGENT  TO  PRINCIPAL.  233 

case.^*'  It  is  sometimes  stated  as  the  rule  that  a  gratuitous 
agent,  or  bailee,  is  liable  only  for  gross  negligence.^"  But 
gross  negligence,  as  remarked  by  an  English  judge,  is 
merely  negligence  "with  the  addition  of  a  vituperative 
epithet.  "^^  Thus,  the  fact  that  an  attorney  or  physician 
agreed  to  render  professional  services  without  remunera- 
tion would  not  relieve  him  from  liability  for  failure  to  ex- 
ercise a  reasonable  degree  of  professional  care  and  skill.^'' 
So,  where  a  banker  offered  gratuitously  to  manage  invest- 
inents  for  his  customers,  he  was  held  to  the  exercise  of  the 
skill  and  knowledge  commensurate  with  the  undertaking, 
"and  was  not  at  liberty  to  withhold  from  his  agency  the 
exercise  of  the  skill  and  knowledge  which  he  held  himself 
out  to  possess."  *" 

The  real  test  always  is  the  degree  of  care  that  the  agent 
undertakes  to  exercise.  That  measures  his  obligation,  and 
hence  his  liability.  The  fact  that  the  services  were  gratu- 
itously rendered,  is  usually  of  importance  only  in  deter- 
mining what  degree  of  care  he  undertook  to  exercise.  Thus, 
if  one  were  to  make  casual  inquiry  of  a  lawyer  concerning 

36  Williams  v.  McKay,  40  N.  J.  Eq.  189,  53  Am.  Rep.  775;  Mc- 
Nevins  v.  Lowe,  40  111.  209;  Carpenter  v.  Blake,  50  N.  Y.  696;  Eddy 
V.  Livingston,  35  Mo.  487,  88  Am.  Dec.  122;  Briere  v.  Searls,  126 
Wis.  347,  105  N.  W.  817. 

37  Hammond  v.  Hussey,  51  N.  H.  40,  12  Am.  Rep.  41;  Beardslee 
V.  Richardson,  11  Wend.  (N.  Y.)  25,  25  Am.  Dec.  596;  Grant  v. 
Ludlow,  8  Ohio  St.  1;  Swentzel  v.  Bank,  147  Pa.  St.  140,  23  Atl. 
405. 

58  Rolfe,  B.  in  Wilson  v.  Brett,  11  M.  &  W.  113;  New  York  Cent- 
ral Ry.  Co.  V.  Lockwood,  17  Wall.  (U.  S.)  357;  Gill  v.  Middleton, 
105  Mass.  477;  Isham  v.  Post.  141  N.  Y.  100,  35  N.  E.  1084;  Colyar 
V.  Taylor,  1  Cold.    (Tenn.)    372. 

39  Williams  v.  McKay,  40  N.  J.  Eq.  189,  53  Am.  Rep.  775;  Mo- 
Neyin  v.  Lowe,  40  111.  209. 

«  Isham  V.  Post,  141  N.  Y.  100,  35  N.  E.  1084. 


234  THE  LAW  OF  AGENCY. 

some  point  of  law,  the  latter  clearly  does  not  undertake  to 
exercise  the  same  degree  of  care  in  giving  an  answer  as  he 
would  undertake  were  he  employed  to  render  an  opinion.*^ 
So,  a  merchant,  who  is  shipping  goods  abroad  and  consents 
gratuitiously  to  ship  in  the  same  consignment  a  case  of 
goods  belonging  to  another,  would  not  be  liable,  as  would 
a  paid  shipping  agent,  were  the  goods  seized  because  of 
his  inadvertent  entry  of  them  under  an  improper  designa- 
tion.'*^  But  on  the  other  hand,  where  a  person  gratuitously 
undertakes  to  make  repairs  he  will  be  liable  for  injury 
caused  by  his  failure  to  use  ordinary  care  and  skill  in  mak- 
ing them;  and  the  degree  of  care  required  will  be  deter- 
minded  primarily  by  the  degree  of  skill  which  he  pro- 
fessed to  have  and  undertook  to  exercise.*^ 

§  150.  Duty  to  act  in  g-ood  faith,  (a)  In  general.  The 
relation  of  principal  and  agent  is  essentially  one  of  great 
trust  and  confidence,  and  it  is  the  paramount  duty  of  the 
agent  to  exercise  toward  his  principal  the  highest  degree 
of  good  faith.  Failure  so  to  do  usually  entitles  a  principal 
to  repudiate,  even  against  third  parties,  a  transaction 
tainted  with  bad  faith,  and  of  course  creates  rights  and 
remedies  in  his  favor  against  the  agent. 

"  Fish  V.  Kelly,  17  C.  B.  (N.  S.)   (Eng.)  194. 

<2  Shiells  V.  Blackburne,  1  H.  Bl.  (Eng.)  159.  See  Eddy  v. 
Livingston,  35  Mo.  487,  88  Am.  Dec.  122.  "If,  in  this  case,  a  ship 
broker,  or  a  clerk  in  the  custom  house,  had  undertaken  to  enter 
the  goods,  a  wrong  entry  would  in  them  be  gross  negligence,  be- 
cause their  situation  and  employment  necessarily  imply  a  com- 
petent degree  of  knowledge  in  making  such  entries."  Shiells  v. 
Blackburne,  supra. 

"Gill  V.  Middleton,  105  Mass.  477,  7  Am.  Rep.  548.  See  Briggs^ 
V.  Spauldlng,  141  U.  S.  132;  Steamboat  v.  King,  16  How.  (U.  S/i 
4C0. 


OBLIGATION  OP  AGENT  TO  PRINCIPAL.  235 

(b)  Acting  as  agent  and  party.  Without  full  kuowl- 
edge  and  consent  of  the  principal,  an  agent  can  not  deal 
with  himself  in  a  transaction  in  which  he  acts  as  agent.'** 
Hence  an  agent  authorized  to  buy  property,  can  not,  di- 
rectly or  indirectly,  buy  from  himself ;  *^  nor  can  an  agent 
authorized  to  sell  property  become,  directly  or  indirectly, 
the  purchaser.*"  The  principal  may  repudiate  a  transac- 
tion in  w^hich  the  agent's  interests  were  antagonistic  to  his 
own,  regardless  of  whether  he  suffered  a  loss.*^  The  rule, 
of  course,  is  the  same  where  an  agent,  without  authority, 
acts  for  both  parties  to  a  transaction.  Either  may  repudi- 
ate the  transaction.*^ 

44Michoud  V.  Girod,  4  How.  (U.  S.)  503;  People  v.  Township 
Board,  11  Mich.  222;  Bunker  v.  Miles,  30  Me.  431,  1  Am.  Rep.  632; 
Swindell  v.  Latham,  145  N.  C.  144.  58  S.  E.  1010;  Leigh  v.  Amer- 
ican Brake  Beam  Co.,  205  111.  147,  68  N.  E.  713.  An  agent  will 
not  he  permitted  to  deal  in  his  own  behalf  with  his  principal  with 
reference  to  the  subject  matter  of  the  agency,  unless  he  makes 
full,  complete  and  honest  disclosure  of  the  truth  of  the  transac- 
tion.   Curry  v.  King,  6  Cal.  App.  568.  92  Pac.  662. 

45  Conkey  v.  Bond,  36  N.  Y.  427;  Disbrow  v.  Secor,  58  Conn.  35, 
18  Atl.  981;  Colbert  v.  Shepard,  89  Va.  401,  16  S.  E.  246;  Fisher  v. 
Bush,  133  Ind.  315,  32  N.  E.  924. 

46  Copeland  v.  Insurance  Co.,  6  Pick.  (Mass.)  198;  Bain  v. 
Brown,  56  N.  Y.  285;  Euneau  v.  Rieger,  105  Mo.  659,  16  S.  W.  854; 
Francis  v.  Kerker,  85  111.  190;  George  N.  Pierce  Co.  v.  Beers,  190 
Mass.  199,  76  N.  E.  603.  Any  person  purchasing  from  the  agent 
in  the  latter's  interest  will  hold  as  trustee  for  the  principal. 
Hughes  V.  Washington,  72  111.  84;  McKay  v.  Williams,  67  Mich 
547,  35  N.  W.  159. 

47  People  V.  Township  Board,  11  Mich.  222;  Taussig  v.  Hart,  58 
N.  Y,  425;  Maryland  Fire  Ins.  Co.  v.  Dalrymple,  25  Md.  242,  89 
Am.  Dec.  779;  Williams  v.  Moore-Gaunt  Co.,  3  Ga.  App.  756,  60  S. 
E.  372. 

48  New  York  Cent.  Ins.  Co.  v.  Insurance  Co.,  14  N.  Y.  85;  Shir- 
land  V.  Iron  Works,  41  Wis.  162;  Truslow  v.  Parkersburg,  etc., 
Ry.  Co.,  61  W.  Va.  628,  57  S.  E.  51;  Todd  v.  German  American 
Ins.  Co.,  2  Ga.  App.  789,  59  S.  E.  94.     The  good  faith  which  under- 


236  TIIL  LAW  OF  AGENCY. 

(c)  Acquiring  adverse  interest.  Since  it  is  the  duty 
of  an  agent  to  look  to  the  interests  of  his  principal,  he  can 
not  acquire  for  himself  rights  or  interests  which  it  is  his 
duty  to  secure  for  his  principal;  nor  can  he  take  advan- 
tage of  knowledge  gained  by  reason  of  his  confidential  po- 
sition to  acquire  interests  adverse  to  his  principal.*^  Thus, 
where  an  agent  employed  to  purchase  property  for  his  prin- 
cipal, buys  the  same  for  himself,  he  will  hold  it  as  trustee 
for  the  principal,  who  can  enforce  conveyance  of  the  legal 
title.^°  "Where  the  agent  buys  with  his  own  money  it  is 
frequently  held  that  to  enforce  conveyance  to  the  principal 
would  be  violative  of  the  statute  of  frauds,  which  requires 
that  creation  of  trusts  in  land  be  proved  by  a  writing  signed 
by  the  party  who  declares  the  trust.^^  Other  well  consid- 
ered cases,  however,  hold  that  the  trust  will  arise  by  impli- 
cation of  law,  and  that  upon  tender  of  purchase  price  and 
his  reasonable  compensation,  the  principal  may  enforce 
conveyance  of  the  property  from  the  agent.°^     Nor  will  it 

lies  the  relation  of  agency  prohibits  a  person  from  acting  as 
agent  of  opposing  parties.  Madden  v.  Cheshire  (Kan.),  94  Pac. 
793. 

40  Sweet  V.  Jacocks,  6  Paige  (N.  Y.),  355,  31  Am.  Dec.  252;  Ringo 
V.  Binn,  10  Pet.  (U.  S.)  269;  Gardner  v.  Ogdcn,  22  N.  Y.  327,  78 
Am.  Dec.  192;  Thorne  v.  Brown,  63  W.  Va.  603,  60  S.  E.  614. 

50  Rose  V.  Hayden,  35  Kan.  106,  10  Pac.  554;  Vallette  v.  Tedens, 
122  111.  007,  14  N.  E.  52;  Bergner  v.  Bergner,  219  Pa.  St.  113,  67 
Atl.  999.  The  clerk  of  a  broker  employed  to  sell  land,  who  has 
access  to  the  correspondence  of  the  seller,  stands  in  such  a  rela- 
tion of  trust  to  the  Ir'ter  that  if  he  purchases  the  land  he  will 
hold  it  as  trustee.  Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec. 
192. 

''1  Burden  v.  Sheridan,  36  Iowa,  125,  14  Am.  Rep.  505;  Watson  v. 
Erb,  33  Ohio  St.  35;  Collins  v.  Sullivan,  135  Mass.  461;  Botsford 
V.  Burr.  2  .lohns.   (N.  Y.)   404. 

■'•2  Rose  V.  Hayden,  35  Kan.  106,  10  Pac.  554;  Boswell  v.  Cunning- 
ham, .32  Fla.  277.  i:;  South.  354. 


OBLIGATION  OF  AGENT  TO  PRINCIPAL.  237 

always  be  deemed  necessary  that  the  agent  was  employed 
specifically  to  secure  the  property.^^  Thus,  in  an  Illinois 
case,  where  the  confidential  agent  of  the  lessee  of  a  theater 
learning,  by  virtue  of  his  position,  that  his  principal's 
lease  was  about  to  expire,  and  knowing  that  the  same  was 
of  great  value,  secretly  secured  a  renewal  in  his  own  name, 
he  was  declared  a  trustee  for  his  principal.^* 

In  application  of  the  same  principle,  it  is  held  that 
where  an  agent  in  the  course  of  his  employment  learns  of  a 
defect  in  his  principal's  title,  he  may  not  use  his  knowledge 
to  acquire  title  for  himself.^^  And  if  he  discovers  the  ex- 
istence of  a  claim  against  his  principal  and  purchases  the 
same  at  a  discount,  he  can  enforce  the  claim  only  for  the 
amount  for  which  he  purchased  it.^®  So,  an  agent  can  not 
acquire  adverse  rights  which  arose  through  his  own  neg- 
lect of  duty.^''  Thus,  an  agent  who  neglects  to  pay  taxes 
on  his  principal's  property  can  not  retain  title  to  the  same, 
acquired  at  a  subsequent  tax  sale,  but  will  hold  it  for  the 
benefit  of  the  principal.^® 

(d)  May  not  deny  title.  AVhere  an  agent  receives 
money  or  property  for  his  principal,  he  will  not,  as  a  rule, 
be  heard  to  deny  the  principal's  title ;  nor  to  set  up  title  in 
a  third  person,  where  the  principal  seeks  to  recover  the 

B3  Gower  v.  Andrews,  59  Cal.  119,  43  Am.  Rep.  242;  Grumley  v. 
Webb,  44  Mo.  444,  100  Am.  Dec.  304. 

e*  Davis  v.  Hamlin,  108  111.  39,  48  Am.  Rep.  541. 

65  Cameron  v.  Lewis,  56  Miss.  76;  Case  v.  Carroll,  35  N.  Y.  385; 
Ringo  V.  Binns,  10  Pet.  (U.  S.)  269. 

56  Smith  V.  Brotherline,  62  Pa.  St.  461;  Noyes  v.  Landon,  59 
Vt.  569,  10  All.  342. 

57  Briggs  v.  Hodgson,  78  Me.  514,  7  Atl.  387;  Barton  v.  Moss,  32 
111.  50;  Fox  V.  Zimmerman,  77  Wis.  414,  46  N.  W.  533. 

esKrutz  v.  Fisher,  8  Kan.  90;  Murdock  v.  Milner,  84  Mo.  96; 
Gonzalia  v.  Bartlesman,  143  111.  634,  32  N.  E.  532;  Geisinger  v. 
Beyl,  80  Wis.  443,  50  N.  W.  501. 


238  THE  LAW  OP  AGENCY. 

property  from  him.^^  Thus,  where  an  agent  receives  money 
for  his  principal,  under  an  illegal  contract,  he  can  not  de- 
feat the  -f^rincipars  claim  to  the  money  by  setting  up  the  il- 
legality of  the  contract  under  which  the  money  was  paid.^*^ 
So,  where  money  is  given  him  by  the  principal  for  an  ille- 
gal purpose,  he  can  not,  on  that  ground,  refuse  to  refund 
the  same  upon  the  principal's  demand.^^ 

The  agent  may  show,  however,  that  since  receipt  by  him 
of  property,  the  principal  has  parted  with  title ;  ®^  or  that 
he  himself  has  been  divested  of  possession  by  proof  of  title 
in  another.®^  So,  where  money  is  paid  an  agent  imder  cir- 
cumstances entitling  the  person  who  paid  it  to  recover  the 
same,^*  and  it  has  been  so  recovered,  the  agent  may  set  up 
that  fact  when  called  upon  to  account.^^ 

59  Collins  V.  Tillou,  26  Conn.  368,  68  Am.  Dec.  398;  Murray  v. 
Vanderbilt,  39  Barb.  (N.  Y.)  140;  Von  Hunter  v.  Spengeman,  17 
N.  J.  Eq.  185;  Witman  v.  Felton,  28  Mo.  601. 

60  Baldwin  v.  Potter,  46  Vt.  402;  Norton  v.  Blinn,  39  Ohio  St. 
145;  Dillman  v.  Hastings,  144  U.  S.  136.  Where  money  is  paid  an 
agent  for  his  principal,  the  legality  of  the  action  of  which  it  is 
the  fruit,  or  with  which  it  was  connected  does  not  affect  the  right 
of  the  principal  to  recover  it.  Cheuvront  v.  Horner,  62  W.  Va. 
476,  59  S.  E.  964.  But  see  Leonard  v.  Poole,  114  N.  Y.  371,  21  N. 
E.  707. 

61  Souhegan  Nat.  Bank  v.  Wallace,  61  N.  H.  24;  Kiewert  v.  Rind- 
skorf,  46  Wis.  481,  1  N.  W.  163.  The  law  making  void,  contracts 
in  reference  to  business  carried  on  in  disregard  of  the  privilege 
tax  does  not  shield  an  agent  from  liability  for  misappropiation  of 
funds  in  the  conduct  of  such  business.  Decell  v.  Hazelhurst  Oil 
Co.,  83  Miss.  346,  35  South.  761. 

62  Marvin  v.  Ellwood,  11  Paige  (N.  Y.),  365;  Roberts  v.  Noyes, 
76  Me.  590;  Snodgrass  v.  Butler,  54  Miss.  45. 

63  Burton  v.  Wilkinson,  18  Vt.  185,  46  Am.  Dec.  145;  Bliven  v. 
Railway  Co.,  36  N.  Y.  403. 

64  Ante  §  138. 

cs  Western  Transp.  Co.  v.  Barber,  56  N.  Y.  544;  Murray  v.  Mann. 
2  Ex.  (Eng.)  538. 


OBLIGATION  OF  AGENT  TO  PRINCIPAL.  239 

(e)  May  not  make  a  profit.  Any  profit  accruing  to  an 
agent  from  performance  of  his  agency,  other  than  his  com- 
pensation, will  be  held  by  him  for  the  benefit  of  his  princi- 
pal.®^ Thus,  where  an  agent,  authorized  to  sell  at  a  stipu- 
lated price,  sells  for  a  higher  price,  he  can  not,  in  the  ab- 
sence of  an  agreement,  keep  the  difference ;  ®^  and  the  rule 
would  be  the  same  where  he  purchases  property  at  less 
than  the  authorized  price.®*  So,  an  agent  to  sell,  who  is 
authorized  to  keep  whatever  he  can  obtain  over  a  specified 
sum,  would  be  bound  to  inform  his  principal  of  facts,  sub- 
sequently discovered,  which  substantially  increased  the 
value  of  the  property.®"  And,  generally,  an  agent  must 
account  to  the  principal  for  all  commissions,  discounts  or 
other  personal  benefits  which  accrue  to  him  from  third  per- 
sons by  reason  of  his  position  as  agent.'^® 

(f)  Failure  to  give  notice.  Where  a  principal  suffers 
loss  by  reason  of  failure  of  his  agent  to  give  prompt  notice 

«6Bain  v.  Brown,  56  N.  Y.  285;  Docld  v.  V^akeman,  26  N.  J.  Eq. 
484;  Graham  v.  Cummings,  208  Pa.  St.  516,  57  Atl.  943;  Albright 
V.  Phoenix  Ins.  Co.,  72  Kan.  591,  84  Pac.  383;  Forlaw  v.  Augusta 
Naval  Stores  Co.,  124  Ga.  261,  52  S.  E.  898.  If  the  profit  results 
from  fraudulent  violation  of  duty,  the  fraud  may  be  waived  and 
recovery  had  as  on  implied  contract  for  money  had  and  received. 
Schick  V.  Suttle,  94  Minn.  135,  102  N.  W.  217. 

67  Cutter  V.  Demmon,  111  Mass.  474;  Merryman  v.  David,  31 
111.  404;  Blanchard  v.  Jones,  101  Ind.  542;  Kramer  v.  Winslow, 
154  Pa.  St.  637,  25  Atl.  766. 

68  Ely  V.  Hanford,  65  111.  267;  Keyes  v.  Bradley,  73  Iowa,  589,  35 
N.  W.  656;  Duryea  v.  Vosburg,  138  N.  Y.  621,  33  N.  E.  932;  Hindle 
V.  Holcomb,  34  Wash.  336,  75  Pac.  873;  Kevanne  v.  Miller,  4  Cal. 
App.  598,  88  Pac.  643. 

69  Hegenmyer  v.  Marks,  37  Minn.  6,  32  N.  W.  785;  Snell  v.  Good- 
lander,  90  Minn.  533,  97  N.  W.  421. 

TO  Morgan  v.  Aldrich,  114  Mo.  App.  700,  91  S.  W.  1024;  State 
V.  State  Journal  Co.,  77  Neb.  752,  110  N.  W.  763.  Where  an  agent 
receives  from  another  additional   compensation  for  services  that 


240  THE  LAW  OF  AGENCY. 

of  facts  affecting  his  rights,  the  agent  will  be  liable  in  dam- 
agesJ^  Thus,  an  agent  authorized  to  sell  property  upon 
specified  terms,  upon  learning  that  a  better  sale  can  be 
made,  is  bound  to  notify  his  principal,  before  concluding 
the  sale  that  was  authorized. '^^  So,  generally,  where  prop- 
erty intrusted  to  his  care  is  seized  on  legal  process,  or  a 
purchaser  of  goods  becomes  insolvent,  or  a  note  due  the 
principal  is  not  paid  at  maturity,  the  agent  is  bound  to 
give  prompt  notice  to  his  principal."^ 

§  151.  Duty   to   account,     (a)  In    general.    It   is,    of 

course,  the  duty  of  the  agent  to  account  to  the  principal 
for  all  funds  received  by  him  in  the  performance  of  his 
agency ;  and  to  this  end,  the  obligation  is  upon  him  to  keep 
accurate  and  suitable  records  or  accounts  of  all  his  deal- 
ings, including  receipts  and  disbursements.'^*  An  agent  is 
required,  furthermore,  to  keep  the  money  and  goods  of  his 
principal  separate  and  distinct  from  his  own,  or  from  those 
of  third  persons.'^  If  an  agent  commingles  his  principal's 
goods  with  his  own,  the  burden  is  upon  him  to  identify  his 
own,  and  if  he  fails  to  do  so,  the  principal  may  claim  the 

he  is  already  bound  to  render  for  his  principal,  he  usually  must 
account  for  the  same  to  the  principal,  unless  the  additional  reward 
was  an  independent  gratuity.  See  Gay  v.  Paige,  150  Mich.  463, 
114  N.  W.  217, 

71  Harvey  v.  Turner,  4  Rawle.  (Pa.)  222.    . 

72Sne]l  V.  Goodlander,  90  Minn.  533,  97  N.  W.  421. 

73  Devall  V.  Burbridge,  4  Watts  &  S.  (Pa.)  305;  Forrestier  v. 
Bordman,  1  Story  (U.  S.),  43. 

74  Keighler  v.  Manufacturing  Co..  12  Md.  383.  71  Am.  Dec.  600; 
Illinois  Linen  Co.  v.  Hough,  91  111.  63;  Dodge  v,  Hatchett,  118  Ga. 
HH',',,  45  S.  E.  667;  Quirk  v.  Quirk.  155  Fed.  199. 

76  Kennesaw  Guano  Co.  v.  Wappoo  Mills,  119  Ga.  776,  47  S.  E. 
206. 


OBLIGATION  OF  AGENT  TO  PRiNClPAL.  241 

whole  mass."^'  So,  if  an  agent  mingles  the  principal's 
fnncls  with  his  own,  and  the  mingled  funds  are  lost,  he  will 
be  liable  for  the  principal's  loss.'''  Thus,  where  an  agent 
deposits  funds  of  his  principal  to  his  individual  credit  in 
a  bank,  he  will  be  liable  for  the  amount  if  the  same  be  lost 
through  failure  of  the  bankJ^ 

(b)  Duty  to  pay  over.  The  time  at  which  an  agent  is 
bound  to  pay  over  to  his  principal  money  in  his  possession 
must  be  determined  from  the  contract  of  employment,  the 
principal's  instructions,  and  the  nature  of  the  agency.'^* 
In  the  absence  of  express  or  implied  authority  to  longer 
retain  it,  an  agent  receiving  money  for  his  principal  is 
bound  to  remit  the  same  with  promptness.^"  An  agent 
would  usually  be  entitled  to  deduct  his  commissions  out  of 
funds  received,  but  could  not,  as  a  rule,  apply  the  same  to 
the  payment  of  an  independent  debt  due  him  from  the 
principal.®^ 

76  Hart  V.  Ten  Eyck,  2  Johns.  Ch.  (N.  Y.)  62;  First  Nat.  Bank  v. 
Kilbourne,  127  111.  573,  20  N.  E.  681. 

"  Bartlett  v.  Hamilton,  46  Me.  435;  Pickney  v.  Dunn,  2  S.  C. 
314;  Cartmell  v.  Allard,  7  Bush.  (Ky.)  482. 

78  Mason  v.  Whitthorne,  2  Cold.  (Tenn.)  242;  Norris  v.  Hero, 
22  La.  Ann.  C05;  Naltner  v.  Dolan,  108  Ind.  500,  8  N.  B.  289;  Wil- 
liams V.  Williams,  55  Wis.  300,  12  N.  W.  465. 

79  Brown  v.  Arrott,  6  Watts  &  S.  (Pa.)  418;  Watson  v.  Bank,  8 
Mete.  (Mass.)  217,  41  Am.  Dec.  500;  Zuck  v.  Gulp,  59  Cal.  142; 
Lillie  V.  Hoyt,  5  Hill  (N.  Y.),  395,  40  Am.  Dec.  360;  Leake  v.  Suth- 
erland, 25  Ark.  219.  Where  an  agent,  having  in  iiis  possession  for 
sale  a  number  of  organs  and  also  a  number  of  notes  for  collection, 
refuses  to  deliver  the  same  to  the  owner,  he  is-  liable  for  conver- 
sion.   Bridgeport  Organ  Co.  v.  Snyder,  147  N.  C.  271,  61  S.  E.  51. 

80  Eaton  v.  Wei  ton,  32  N.  H.  352;  Clark  v.  Moody,  17  Mass.  145; 
Campbell  v.  Roe,  32  Neb.  345,  49  N.  W.  452;  Mast  v.  Easton,  33 
Minn.  161,  22  N.  W.  253. 

81  Vinton  v.  Baldwin,  95  Ind.  433;  White  v.  Railway  Co.,  90  Ala. 
254,  7  South.  910;  Shearman  v.  Morrison,  149  Pa.  St.  386,  24  Atl., 

16 


2i2 


THE  LAW  OF  AGENCY. 


(c)  Demand.  It  has  frequently  been  held  that  no  right 
of  action  for  money  received  by  the  agent  arises  until 
proper  demand  has  been  made.^"^  In  cases,  however,  where 
the  agent  has  clearly  violated  a  fixed  obligation  to  pay  over 
money  immediately  upon  its  receipt,  it  would  seem  that 
demand  would  not  be  necessary,^'  Where  an  agent  retains 
money  after  demand,  or  keeps  it  wrongfully,  in  cases  where 
no  demand  is  necessaiy,  he  would  be  liable  for  interest 
from  the  date  upon  which  the  money  became  due.^* 

§  152.  Subag'ents.  Whether  an  agent  is  liable  to  his 
principal  for  misconduct  or  default  of  a  subagent,  or 
whether  the  latter  is  directly  liable,  depends  upon  whether 
privity  of  contract  can  be  sho^^oi  to  exist  between  the  prin- 
cipal and  subagent,  or  whether  the  latter  is  deemed  merely 
an  agent  of  the  original  attorney.  If  such  privity  exists, 
the  original  agent  is  liable  only  for  failure  to  exercise  rea- 
sonable care  in  the  selection  of  the  subagent.  If  there  is 
no  privity  between  subagent  and  principal,  the  origi- 
nal agent  is  absolutely  liable  for  the  misconduct  of  the 
subagent,  who,  in  that  event,  is  his  agent,  and  a  stranger  to 

313;  Tagg  v.  Bowman,  108  Pa.  St.  273,  56  Am.  Rep.  204.  In  an 
action  against  an  agent  for  money  in  his  hands,  the  burden  is  on 
him  to  give  an  account,  where  he  claims  commissions  for  dis- 
bursements. Hildreth  v.  Ayer  &  Lord  Tie  Co.,  32  Ky.  Law  Rep. 
1212,  108  S.  W.  255. 

82  Heddens  v.  Younglove,  46  Ind.  212;  Baird  v.  Walker,  12  Barb. 
(N.  Y.)  298;  Hammett  v.  Brown,  60  Ala.  498;  Cockrill  v.  Kirk- 
patrlck,  9  Mo.  697;  Claypool  v.  Gish,  108  Ind.  424,  9  N.  E.  382. 

83Lillie  V.  Hoyt,  5  Hill  (N.  Y.),  395,  40  Am.  Dec.  360;  Jett  v. 
Hempstead,  25  Ark.  463;  Bedell  v.  Janney,  9  111.  193;  Cooley  v. 
Betls,  24  Wend.  (N.  Y.)  203;  Haas  v.  Damon,  9  Iowa,  589. 

8*  Dodge  V.  Perkins,  9  Pick.  (Mass.)  3G8;  Anderson  v.  State,  2 
Ga.  370;  Hyman  v.  Gray,  49  N.  C.  155;  Wheeler  v.  Haskins,  41 
Me.  4. ''.2. 


OBLIGATION  OP  AGENT  TO  PRrNCIP.yLi.  243 

the  principal.  The  rule  is  difficult  of  practical  applica- 
tion, and  the  cases,  naturally,  are  conflicting.^^  If  a  bank, 
for  instance,  undertook  the  collection  of  a  note,  and  sent 
one  of  its  regular  employees  to  collect  it,  there  clearly  is 
no  privity  between  him  and  the  owner,  and  the  bank  would 
be  liable  for  his  default.^*'  But  where  the  note  is  payable 
at  a  distant  place,  and  the  bank  sends  it  for  collection  to 
a  correspondent  there,  its  obligation  by  the  weight  of  au- 
thority, extends  no  further  than  to  the  use  of  care  in  the 
selection  of  the  correspondent.^^  Other  eases  hold  the  first 
bank  to  greater  liability.^*  The  same  rules  apply,  in  the 
main,  to  attorneys,  who  take  claims  for  collection;  though 
some  of  the  courts  incline  to  hold  attorneys  to  higher  re- 
sponsibility than  banks,  for  the  misconduct  of  correspond- 
ents.^^ 

85  Ante  §  37. 

86  Gerhardt  v.  Boatmens'  Sav.  Inst.,  38  Mo.  60,  90  Am.  Dec.  407; 
Mechem  on  Agency,  §  514. 

87  Dorchester,  etc.,  Bank  v.  Bank,  1  Cush.  (Mass.)  177;  East 
Haddam  Bank  v.  Scovil,  12  Conn.  303;  Guelich  v.  National  State 
Bank,  56  Iowa,  434,  9  N.  W.  328;  Daly  v.  Bank,  5G  Mo.  94;  Mer- 
chants' Nat.  Bank  v.  Goodman,  109  Pa.  St.  422,  2  Atl.  687;  Wilson 
V.  Bank,  187  111.  222,  58  N.  E.  250. 

88  Exchange  Nat.  Bank  v.  Bank,  112  U.  S.  276;  Ayrault  v.  Paci- 
fic Bank,  47  N.  Y.  570,  7  Am.  Rep.  489;  Simpson  v.  Waldby,  63 
Mich.  439,  30  N.  W.  199;  Streissguth  v.  Bank,  43  Minn.  50,  44  N. 
W.  797. 

89  Bradstreet  v.  Everson,  72  Pa.  St.  124,  13  Am.  Rep.  665;  Cum- 
mins V.  Heald,  24  Kan.  600,  36  Am.  Rep.  264;  Weyerhauser  v.  Dun, 
100  N.  Y.  150,  2  N.  E.  274.  See  Landa  v.  Traders'  Bank,  118  Mo. 
App.  356,  94  S.  W.  770.  Where  the  liability  is  made  to  turn  largely 
on  whether  the  original  agent  agrees  for  compensation  to  collect 
tlie  claim. 


CHAPTER  XV. 
OBLIGATIONS  OF  PRINCIPAL  TO  AGENT. 

§  153.  In  general. 

154.  Compensation. 

(a)  In  general. 

(b)  Ratification. 

(c)  Amount  of  compensation. 

155.  When  compensation  is  due. 

156.  Revocation  of  authority. 

(a)  In  general. 

(b)  Revocation  in  violation  of  contract. 

(c)  Agent's  misconduct. 

(d)  Revocation  by  law. 

157.  Renunciation  by  agent. 

(a)  In  general. 

(b)  Entire  and  severable  contracts. 

158.  Obligation  to  reimburse. 

159.  Obligation  to  indemnify. 

(a)  In  general. 

(b)  Illegal  acts. 

160.  Lien  of  agent. 

161.  Special  lien. 

(a)  In  general. 

(b)  Requisites  of  lien. 

(c)  Enforcement  of  lien. 

162.  Stoppage  in  transitu. 

§  153.  In  general.  The  lial)ilitiGs  of  a  principal  to  his 
agent  are  founded,  of  course,  upon  the  contract  of  employ- 
ment between  them.  The  rules  governing  such  liability 
are  merely  those  of  the  law  of  coiitracts  as  applied  to  the 
contract  of  agency,  iiiid  sli;ill  he  little  more  tlinii  indicated 
in    tliis.    Ih*'   conclndin'.r   cliiiplcr.    of  our   discussion.     The 


OBLIGATIONS    OP   PRINCIPAL   TO   AGENT.  245 

broad  duty  that  an  employer  owes  to  any  employee  to  fur- 
nish him  a  safe  place  in  which  to  work,  as  well  as  proper 
instrumentalities  for  performance  of  his  service,  and  to  use 
care  in  selection  of  competent  fellow-workmen,  might  con- 
ceivably arise  where  the  relation  existing  was  that  of  prin- 
cipal and  agent,  but  in  practically  all  instances,  where 
damages  are  recovered  for  failure  to  properly  perform  such 
duties,  the  relation  is  that  of  master  and  servant;  and  the 
rules  determining  the  liability  in  question  will  be  found 
discussed  under  other,  and  appropriate,  toi)ics  of  the  law.^ 
Keeping  within  the  confines  of  our  subject,  it  may  be  stated, 
in  general  terms,  that  it  is  the  duty  of  the  principal  to  pay 
his  agent  such  remuneration  as  was  expressly  or  impliedly 
agreed  upon,  to  reimburse  him  for  expenses  properly  in- 
curred in  performance  of  the  agency,  and  to  indemnify  him 
for  personal  loss  consequent  upon  due  execution  of  his  au- 
thority. 

§  154.  Compensation,  (a)  In  general.  An  obligation 
to  remunerate  another  for  services  rendered  can  arise  only 
from  express  or  implied  agreement.  One  man  can  not  make 
nnother  his  debtor  without  that  other's  assent.  "Where,  by 
the  terms  of  a  contract  of  employment,  compensation  is  ex- 
pressly promised,  the  obligation  to  pay  the  same  is  clear. 
But  even  in  the  absence  of  express  promise,  an  agreement 
to  compensate  arises,  by  implication  of  law,  where,  upon 
request  or  with  acquiescence,  services  are  rendered  of  such 
a  nature,  or  under  such  circumstances,  as  to  indicate  an 
expectation  of  remuneration.^  Thus,  if  one  is  requested  to 
perform  for  another  services  which  ordinarily  are  remuner- 

1  Cooley  on  Torts,  Chap.  XVIII. 

2  Lewis  V.  Tri(ikey,  20  Barb.  (N.  Y.)  387;  Mangum  v.  Ball,  43 
Miss.  288,  5  Am.  Rep.  488;  Story  on  Agency,  §  324, 


246  THE  LAW  OF  AGENCY. 

ated,  a  pi'omise  to  pay  for  tlae  same  wiYL  readily  be  implied.' 
So,  where  services  are  volunteered  uiider  circnimstances  in- 
dicating that  they  are  conditioned  upon  compensation,  ac- 
ceptance of  them  will  raise  an  implication  of  a  promise  to 
remunerate.* 

"Where,  however,  no  acquiescence  in  performance  is 
shown,  or  where  the  circumstances  do  not  indicate  that 
compensation  was  expected  as  a  matter  of  right,  no  promise 
to  pay  is  implied,  and  no  obligation  to  do  so  exists.^  Thus, 
the  law  will  not  imply  an  obligation  in  a  father  to  compen- 
sate his  daughter  for  ordinary  filial  services  rendered  by 
her ;  for,  in  the  absence  of  a  contrary  agreement,  the  infer- 
ence arises  that  such  services  were  gratuitously  rendered." 
So,  where  services  are  rendered  as  a  mere  act  of  kindness 
or  accommodation,  or  with  the  mere  hope  of  voluntary  re- 
ward, the  fact  that  they  were  accepted,  or  even  requested, 
does  not  imply  a  promise  to  pay  for  them.'^  And,  so,  where 
services  are  rendered  for  the  purpose  of  inducing  future 
employment,  as  where  drawings  or  estimates  are  prepared 

3  Van  Arman  v.  Byington,  38  111.  443;  "Weeks  v.  Holmes,  12  Cusli, 
(Mass.)  215.  If  a  person  for  whom  such  services  were  rendered 
alleges  that  they  were  to  be  gratuitous,  the  burden  is  upon  him  to 
establish  that  understanding.  Dougherty  v.  "Whitehead,  31  Mo. 
255. 

*Muscott  V.  Stubbs,  24  Kan,  520;  McCary  v.  Ruddick,  33  Iowa, 
521;  James  v.  Bixhy,  11  Mass.  34;  "Weston  v.  Davis,  24  Me.  374; 
Garrey  v.  Stadler,  67  "W' is.  512,  30  N.  "W.  787. 

6  Hill  V.  "Williams,  59  N.  C.  242;   Morris  v.  Barnes,  35  Mo.  412. 

•  Hall  V.  Hall,  44  N.  H.  293;  Briggs  v.  Briggs,  46  "Vt.  571;  Mor- 
ton V.  Ilainey,  82  111.  215.  25  Am.  Rep.  311;  Byrnes  v.  Clark,  57 
"Wis.  13,  14  N.  W.  815;  Hill  v.  Hill,  121  Ind.  255,  23  N.  E.  87. 

7  "Wood  V.  Brewer,  66  Ala.  570;  Lange  v.  Kaiser,  34  Mich.  318; 
Chadwick  v.  Knox.  31  N.  H.  226,  64  Am.  Dec.  329;  Bartholomew 
V.  Jackson,  20  Johns."  (N.  Y.)  28,  11  Am.  Dec.  237;  Mechem  on 
Agency,  §  600. 


OBLIGATIONS    OF   PRINCIPAL    TO   AGENT.  247 

for  submission  in  competition  for  a  contract,  no  promise  is 
implied  to  pay  for  such  services.* 

(b)  Ratification.  Where  acts  are  performed  by  one 
person  in  behalf  of  another,  without  authority,  they  are 
in  no  way  binding  upon  him;  and  no  obligation  arises  to 
pay  for  such  unauthorized  service.  Ratification,  hov;ever, 
as  we  have  seen,  is  equivalent  to  precedent  authority,  and 
invests  the  agent  with  the  same  rights  against  the  principal 
as  would  have  existed  had  he  acted  in  pursuance  of  author- 
ity duly  given.®  It  follows,  therefore,  that  if  a  person 
ratifies  acts  done  in  his  behalf  without  authority,  he  in- 
curs the  same  liability  for  compensation  as  would  have  ex- 
isted had  the  acts  been  precedently  authorized.^" 

(c)  Amount  of  compensation.  Where  the  parties  ex- 
pressly agree  as  to  the  amount  of  compensation,  the  terms 
of  their  agreement  will  be  conclusive.^ ^  So,  if  by  agree- 
ment it  is  left  to  the  principal  to  fix  the  compensation  at 
his  discretion,  the  agent  will  be  limited  in  his  recovery  to 
the  amount  so  fixed  by  the  principal,  provided  the  latter 
acts  fairly  and  in  good  faith.^-  In  the  absence  of  express 
agreement,  the  law  implies  a  promise  to  pay  what  the  serv- 
ices are  reasonably  worth. ^^     The  value  of  particular  serv- 

8  Scott  V.  Maier,  56  Mich.  554,  23  N.  W.  218;  Palmer  v.  Haver- 
hill, 98  Mass.  487. 

9  Ante  §  62. 

10  Wilson  V.  Dame,  58  N.  H.  392;  Goss  v.  Stevens,  32  Minn.  472, 
21  N.  W.  549.  Where  a  real  estate  agent  departs  from  authority 
in  effecting  a  sale,  upon  ratification  he  may  recover  the  compen- 
sation fixed  in  the  original  contract  of  employment.  Gelatt  v. 
Ridge,  117  Mo.  553,  23  S.  W.  882. 

11  Wallace  v.  Floyd,  29  Pa.  St.  184,  72  Am.  Dec.  620;  Hamilton 
V.  Frothingham,  59  Mich.  253;  Haas  v.  Malto-Grapo  Co.,  148  Michi' 
358,  111  N.  W.  1059. 

12  Butler  V.  Winona  Mill.  Co.,  28  Minn.  205,  9  N.  W.  097. 
isMcCrary  v.  Ruddick,  33  Iowa,  520;  Millar  v.  Cuddy,  43  Mich. 


248 


THE  LAW  OF  AGENCY, 


ices  is  a  question  of  fact  to  be  determined  from  the  nature 
of  the  services,  the  skill  exercised,  and  the  time  consumed, 
in  their  performance,  and  the  opinion  of  qualified  experts 
as  to  their  worth."  Where  an  agent  employed  for  a  stated 
term  at  a  fixed  compensation  continues  in  service  after  the 
expiration  of  the  term,  the  inference  arises  that  he  contin- 
ues at  the  old  compensation.^^ 

§  155.  When  compensation  is  due.  Compensation  for 
services  ordinarily  does  not  become  due  until  the  services 
have  been  performed.  Thus,  if  a  broker  undertakes  to  sell 
land  on  commission,  the  commission  is  not  due  until  the 
sale  has  been  made.^®  But  where  the  agent  has  accom- 
plished all  that  he  set  out  to  do,  his  right  to  compensation 
can  not  be  defeated  by  refusal  of  the  principal  to  avail  him- 
self of  the  benefit  of  the  services.^'  Thus  where  a  broker 
employed  to  secure  a  loan  finds  a  lender  able  and  willing 

273,  5  N.  W.  316.  Where  a  non-professional  agent  sold  land  under 
a  general  promise  of  compensation,  he  would  be  entitled  to  the 
amount  usually  paid  to  a  regular  broker  for  like  services.  Stew- 
art V.  Soubral  &  Tucker,  119  La.  211,  43  South.  1009.  See  Fred- 
rickson  v.  Locomobile  Co.,  78  Neb.  775,  111  N.  W.  845. 

i*Ruckman  v.  Bergholz,  38  N.  J.  Law,  531;  Eggleston  v.  Board- 
man,  37  Mich.  14;  Bowen  v.  Bowen,  74  Ind.  470;  Miller  v.  Smith, 
112  Mass.  470;  Mechem  on  Agency,  §  606.  Where  amount  of  com- 
missions is  regulated  by  usage  or  custom,  it  will  be  inferred  that 
the  parties  dealt  with  reference  thereto,  and  evidence  of  the 
amount  so  fixed  would  be  competent.  Stanton  v.  Embrey,  93  U. 
S.  548. 

15  Wallace  v.  Floyd,  29  Pa.  St.  184,  72  Am.  Dec.  620.  See  Tallon 
V.  Mining  Co.,  55  Mich.  147;  McCullough  Iron  Co.  v.  Carpenter 
67  Md.  554,  11  Atl.  176. 

18  Jones  V.  Adler,  34  Md.  440;  Walker  v.  Tirrell,  101  Mass.  257; 
Hinds  V.  Henry,  36  N.  J.  Law,  328;  Irby  v.  Lawshe,  62  Ga.  210; 
Bradlee  v.  Southern  Coast  Lumber  Co.,  193  Mass.  378,  79  N.  E.  777. 

17  Holden  v.  Starks.  159  Mass.  503,  34  N.  E.  1069;  Attril  v.  Pat- 
terson. 58  Md.  226. 


OBLIGATIONS    OF  PRINCIPAL   TO   AGENT.  249 

to  make  the  same,  his  services  have  been  performed,  and 
he  is  entitled  to  compensation  regardless  of  whether  the 
principal  accepts  the  loan.^*  And  the  rule  would  be  the 
same  where  a  purchaser  is  found  for  land.^®  So,  it  has 
been  held  that  where  an  agent  is  entitled  to  commissions 
on  orders,  an  arbitrary  refusal  to  accept  orders  secured  by 
him,  will  not  defeat  his  right  to  recover.-" 

§  156.  Revocation   of  authority,     (a)  In   general.    In 

the  absence  of  contrary  agreement,  a  principal  at  any  time 
before  performance  may,  without  liability,  revoke  the  au- 
thority of  an  agent. ^^  Hence  where  compensation  is  con- 
tingent on  complete  performance, — as  in  the  case  of  an 
agency  to  sell  land  on  commission, — and  authority  is  with- 
drawn before  performance,  no  liability  for  luiearned  com- 
missions arises.-^  Where,  however,  the  services  of  the  agent 
have  been  the  efficient  cause  of  bringing  negotiations  to  a 
conclusion,  his  undertaking  has  been  accomplished,  and  the 
principal  can  not  deprive  him  of  commissions  by  revoking 

18  Vinton  v.  Baldwin,  88  Ind.  104,  45  Am.  Rep.  447. 

18  Mooney  v.  Elder,  56  N.  Y.  238;  Love  v.  Miller,  53  Ind.  294,  21 
Am.  Rep.  192;  Cassady  v.  Seeley,  69  loyfa,,  509,  29  N.  W.  432;  Des- 
mond V.  Stebbin,  140  Mass.  339,  5  N.  E.  150. 

20  Jacquin  v.  Boutard,  157  N.  Y.  686,  51  N.  E.  1091.  Under  a 
contract  that  no  commissions  are  to  be  paid  on  orders  not  ac- 
cepted and  that  acceptance  is  at  discretion  of  the  principal,  the 
agent  can  not  collect  for  orders  not  accepted.  Temby  v.  Williams 
Brunt  Pottery  Co.,  229  111.  540,  82  N.  E.  336.  Unless  there  be  a 
showing  of  bad  faith,  such  as  a  refusal  merely  for  sake  of  defeat- 
ing commissions.  Wolfson  v.  Allen  Bros.  Co.,  120  Iowa,  445,  94 
N.  W.  910. 

21  Ante  §  68. 

22  Walker  v.  Tirrel,  101  Mass.  257,  3  Am.  Rep.  352;  Hinds  v. 
Henry,  36  N.  J.  Law,  328;  North  Carolina  Ins.  Co.  v.  Williams,  91 
N.  C.  69,  49  Am.  Rep.  637;  Morrow  y.  Tunkhannock  Ice  Co.,  211 
Pa,  St.  445,  60  Atl.  1004. 


250  THE  LAW  OF  AGENCY. 

the  authority  and  completing  tlie  transaction  himself.'" 
So,  where  the  nature  of  an  undertaking  is  such  that  each 
day's  service,  as  renderedj  is  of  distinct  value  to  the  princi- 
pal, the  law  will  imply  a  promise  to  remunerate  for  part 
performance,  notwithstanding  that  compensation  was  fixed 
on  the  basis  of  complete  performance,  and  authority  was 
revoked  before  the  undertaking  was  accomplished.^*  It  is. 
of  course,  competent  for  the  parties  to  provide  either  way 
for  such  contingencies,  and  their  express  agreement  will 
always  govern.-^ 

(b)  Revocation  in  violation  of  contract.  Where  the 
contract  of  employment  is  for  a  stipulated  term,  or  until 
the  completion  of  a  designated  task,  revocation  of  authority, 
in  violation  of  its  terms,  will  render  the  principal  liable 
for  damages.^'  The  agent  in  such  case  may  treat  the  con- 
tract of  employment  as  rescinded  and  sue  upon  quantum 
meruit  for  services  rendered ;  ^^  or  he  may  stand  by  the 
contract  and  recover  damages  for  its  breach.^*  Electing 
the  latter  remedy,  he  vcvoy  sue  at  once  and  recover  probable 

23  Lincoln  v.  McClatchie,  36  Conn.  136;  Sussdorff  v.  Schmidt, 
55  N.  Y.  319;  S.  H.  Green  &  Sons  v.  Freund,  80  C.  C.  A.  387,  150 
Fed.  721;  Morton  v.  J.  I.  Case  Mach.  Co.,  99  Mo.  App.  630,  77  S.  W. 
434. 

24  Chambers  v.  Seay,  73  Ala.  372;  Blackstone  v.  Buttermore,  53 
Pa.  St.  260;  Urquhart  v.  Mortgage  Co.,  85  Minn.  69,  88  N.  W.  264. 

25  Spear  v.  Gardner,  16  La.  Ann.  383;  Adriance  v.  Rutherford,  57 
Mifh.  170;  Reeves  &  Co.  v.  Watkins,  28  Ky.  Law  Rep.  401,  89  S. 
W.  2C6. 

20  Ante  08  (b). 

27  Howard  v.  Daly,  61  N.  Y.  302,  19  Am.  Re]l.  285;  Derby  v. 
Johnson,  21  Vt.  17;  Brinkley  v.  Swicegood,  65  N.  C.  626. 

28  Miller  v.  Goddard,  34  Me.  102,  50  Am.  Dec.  638;  Strauss  v. 
Moertief,  64  Ala.  299,  38  Am.  Rep.  8;  James  v.  Allen  County,  44 
Ohio  St.  226,  6  N.  E.  246;  Geo.  O.  Richardson  Mach.  Co.  v.  Swart 
zel,  70  Kan.  773,  79  Pac.  660. 


OBLIGATIONS   OF  PRINCIPAL   TO   AGENT.  251 

damages;  -^  or  he  may  wait  until  the  expiration  of  the  term, 
and  recover  the  actual  damages  sustained.^"  In  either 
event,  the  measure  of  damages  would  ordinarily  be  the 
amount  of  compensation  fixed  by  the  contract.^^  But  the 
principal  may  reduce  the  amount  of  recovery  by  showing 
that  the  agent  did,  or  by  the  use  of  diligence  could  have 
made  up  his  loss,  or  part  of  it,  by  securing  other  employ- 
ment.^- The  duty  to  seek  other  employment  does  not  re- 
quire, how^ever,  that  the  agent  accept  service  of  an  entirely 
different  or  more  menial  kind  than  that  for  which  he  had 
been  engaged ;  ^^  nor  is  it  incumbent  upon  him  to  seek  far 
fields  in  his  search  for  work.^* 

Where  payment  of  compensation  is,  in  any  event,  co:;- 
tingent  on  success,  as  in  the  case  of  commissions  for  sale 
of  land,  a  revocation  of  authority,  contrary  to  agreement, 
would  not  ordinarily  entitle  the  agent  to  the  amount  of  the 
commission  by  way  of  damages;  for  there  is  no  certainty 
that  he  would  have  met  with  success.  He  could  recover 
inerely  for  his  time  and  trouble,  or  for  the  reasonable  value 

20  Britt  V.  Hays,  21  Ga.  157;  Cutter  v.  Gillette,  163  Mass.  95,  39 
N.  E.  1011;  Pierce  v.  Railway  Co.,  173  U.  S.  1. 

soRemelee  v.  Hall,  31  Vt.  582,  76  Am.  Dec.  140;  Sutherland  v. 
Wyer,  67  Me.  64;  Weed  v.  Burt,  78  N.  Y.  192;  Cutter  v.  Gillette, 
163  Mass.  95,  39  N.  E.  1011. 

31  Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285;  Richardson  v. 
Eagle  Mach.  Works,  78  Ind.  422,  41  Am.  Rep.  584;  Hunt  v.  Crane, 
33  Miss.  669,  69  Am.  Dec.  381. 

32  Sutherland  v.  Wyer,  67  Me.  64;  Ansley  v.  Jordon,  61  Ga.  482; 
Barker  v.  Knickerbocker  Ins.  Co.,  24  Wis.  630;  Hamilton  v.  Love, 
152  Ind.  641,  53 'N.  E.  181;  Horn  v.  Western  Land  Ass'n,  22  Minn. 
233. 

33  Wolf  V.  Studebaker,  65  Pa.  St.  459;  Costigan  v.  Railway  Co., 
2  Denio  (N.  Y.),  609,  43  Am.  Dec.  758. 

3*  Harrington  v.  Gies,  45  Mich.  374;  Strauss  v.  Meertief,  64  Ala. 
299,  38  Am.  Rep.  8. 


252  THE  LAW  OP  AGENCY. 

of  his  services.^"  Where,  however,  the  purpose  of  the 
agency  has  practically  been  accomplished,  but  the  princi- 
pal refuses  to  avail  himself  of  the  result  of  the  services 
rendered,  or.  revokes  the  authority  before  doing  so,  then 
the  compensation  agreed  upon  will  measure  the  agent's 
damages.^^  Thus,  where  the  owner  of  land,  in  violation 
of  an  agreement  with  his  agent,  refused  to  execute  a  deed  to 
a  purchaser,  secured  by  the  agent,  the  measure  of  damages 
would  be  the  amount  of  the  commission  due  under  the  con- 
tract of  employment.^''  So,  of  course,  where  the  principal 
revokes  authority  merely  to  avoid  payment  of  commission, 
the  agent  may  recover  the  amount  of  such  commission, 
either  as  a  proper  measure  of  damages  for  breach  of  con- 
tract, or  upon  the  theory  that  performance  is  complete, 
and  the  commission  has  been  earned. ^^ 

(c)  Agent's  misconduct.  The  agent,  as  we  saw  in  the 
previous  chapter,  impliedly  agrees  to  exercise  good  faith 
in  his  dealings  with  the  principal,  to  obey  instructions,  and 
to  perform  his  service  with  due  diligence  and  care.^''  Vio- 
lation by  the  agent  of  his  obligations,  if  substantial,  would 
entitle  the  principal  to  rescind  the  contract  of  employment 
without  liability  for  damages.*"     It  is  sometimes  stated  as 

35  Blackstone  v.  Buttermore,  53  Pa.  St.  266;  Chambers  v.  Seay, 
73  Ala.  372. 

soSihbald  v.  Bethlehem  Iron  Co..  83  N.  Y.  378,  38  Am.  Rep.  441. 

STWitherell  v.  Murphy,  147  Mass.  417,  18  N.  E.  215. 

88  Sibbald  v.  Bethlehem  Iron  Co.,  83  N.  Y.  378,  88  Am.  Rep.  441; 
Jones  V.  Adler,  34  Md.  440;  Strong  v.  West,  110  Ga.  382,  35  S.  E. 
693.  Where  a  broker  profcures  an  offer  which  is  rejected — there 
being  no  obligation  to  accept — and  the  negotiations  are  aban- 
donod,  a  subsequent  sale  in  good  faith  to  the  person  who  made 
the  offor  will  not  create  liability  for  the  brolcer's  commission. 
Falrfhiid  v.  Cunningham,  84  Minn.  521,  88  N.  W.  15. 

88  Ante,  Chap.  XIV. 

*o  MtClay  v.  Hedge,  18  Iowa,  66;    Parcoll  v.  McComber,  11  Neb. 


OBLIGATIONS   OF   PRINCIPAL   TO   AGENT.  253 

the  rule  that  where  a  principal  terminates  an  agency  for 
misconduct  of  the  agent,  the  latter  forfeits  all  claim  to 
compensation  for  services  rendered.*^  In  case  of  fraudu- 
lent dealings,  or  where  misconduct  has  been  so  gross  as 
practically  to  render  the  services  valueless,  this  undoubt- 
edly would  be  correct.*^  It  would  seem,  however,  where 
the  services  rendered  were  of  substantial  value  to  the  prin- 
cipal, and  in  excess  of  any  damages  sustained  by  reason 
of  the  agent's  misconduct,  that  recovery  could  be  had  for 
the  value  of  such  services.*^ 

(d)  Revocation  by  law.  Where  authority  is  revoked 
by  operation  of  law,  such  revocation  nullifies  the  contract 
of  employment.  Thus,  where  an  agency  is  terminated  by 
the  death  or  insanity  of  the  principal,  the  agent  may  re- 
cover on  quantum  merit  for  services  actualh^  rendered,  but 
is  not  entitled  to  damages  for  loss  occasioned  by  the  termi- 
nation of  his  employment.** 

209,  7  N.  W.  529;  Chicago,  etc.,  Ry.  Co.  v.  Bayfield,  37  Micli.  205; 
Dieringer  v.  Meyer,  42  Wis.  311,  24  Am.  Rep.  415. 

*i  Sea  V.  Carpenter,  16  Oliio  St.  412;  Vennum  v.  Gregory,  21 
Iowa,  326;  Brannan  v.  Strauss,  75  111.  234;  Porter  v.  Silvers,  35 
Ind.  295.  "Where  an  agent  is  guilty  of  such  misconduct  as 
amounts  to  treachery,  or  has  failed  to  recognize  the  responsibil- 
ities Imposed  upon  him,  he  forfeits  all  compensation.  Hahl  v. 
Kellogg,  42  Tex.  Civ.  App.  636,  94  S.  W.  389. 

42  Sumner  v.  Reicheniker,  9  Kan.  320;  Sidway  v.  American 
Mortgage  Co.,  222  111.  270,  78  N.  E.  561.  An  agent  who  acts,  with- 
out knowledge  of  his  principal,  for  both  parties  to  the  transaction 
can  not  recover  compensation,  regardless  of  whether  the  princi- 
pal was  injured  or  the  agent  intended  wrong.  Lemon  v.  Little 
21  S.  D.  628,  114  N.  W.  1001.  See  Atterbury  v.  Hopkins,  122  Mo. 
App.  172,  99  S.  W.  11. 

*3Massey  v.  Taylor,  5  Cold.  (Tenn.)  447;  Lawrence  v.  Gullifer, 
38  Me.  532;  Rochester  v.  Levering,  104  Ind.  562,  4  N.  E.  203. 

4*Yerrington  v.  Green,  7  R,  I.  589,  84  Am.  Dec.  578.     But  the 


25i  THE  LAW  OP  AGENCY. 

§  157.  Renunciation  by  agent,  (a)  In  general.  Where 
an  agent  is  employed  for  an  indefinite  period,  it  is  his  right, 
of  course,  to  terminate  the  employment  at  T^all;  and  upon 
doing  so,  he  may  recover  the  stipulated  compensation  for 
services  rendered.*^  So,  -where  employed  for  a  definite 
term,  he  may  have  the  right,  under  provisions  of  the  con- 
tract, to  terminate  the  same  upon  certain  contingencies ; 
and  by  the  exercise  of  such  right,  he  does  not  forfeit  his 
claim  to  compensation.*^  And,  so,  though  employed  for  a 
definite  term,  the  conduct  of  the  principal  may  be  such  as 
to  entitle  the  agent  to  abandon  the  employment  without 
forfeiture  of  compensation.*"  And,  though  there  be  a 
breach  of  contract,  such  as  would  entitle  the  principal  to 
damages,  yet  the  agent  could  recover  compensation  for 
services  rendered  where  the  contract  was  severable,  and 
compensation  was  not  expressly  or  impliedly  conditioned 
upon  completion  of  the  term  of  service,  or  upon  full  per- 
formance of  an  undertaking.*^ 

(b)  Entire  and  severable  contracts.  It  is  the  general 
rule  that  where  a  contract  of  employment  is  entire,  or  com- 
pensation is  contingent  upon  full  performance,  wrongful 
renunciation,  or  abandonment,  of  the  employment  by  an 
agent  not  only  creates  liability  for  breach  of  contract,  but 
forfeits  all  claim  to  compensation  for  services  rendered.^'' 

fact  that  the  principal  became  bankrupt  would  not  relieve  him 
from  liability.    Lewis  v.  Atlas  Ins.  Co.,  61  Mo.  534. 

•»5  Franklin  Mining  Co.  v.  Harris,  24  Mich.  115;  Patterson  v. 
Suffolk  Mfg.  Co.,  106  Mass.  56. 

■•oWinshIp  V.  Base  Ball  Ass'n,  78  Me.  571;  Spring  v.  Ansonia 
Clock  Co.,  24  Hun   (N.  Y.),  175;   Provost  v.  Harwood,  29  Vt.  219. 

*-r  Patterson  v.  Gago,  23  Vt.  558,  56  Am.  Dec.  96;  Warner  v. 
Smith,  8  Conn.  14;  Bishop  v.  Ranney,  59  Vt.  316,  7  Atl.  820. 

<8Post  §  157   (b). 

^oMillor  V.  r.oddard,  34  Me.  102,  56  Am.  Dec.  638;    Thrift  v. 


OBLIGATIONS   OF  PRINCIPAL   TO   AGENT,  255 

Thus,  in  an  early  Massachusetts  case,  where  a  man  was  em- 
ploj^ed  to  serve  another  for  one  year,  for  a  stated  sum,  it 
was  held  that  abandonment  of  the  employment,  before  the 
expiration  of  the  year,  defeated  his  riglit  to  compensation 
for  services  rendered.^**  Said  the  court :  ' '  The  perform- 
ance of  a  year's  service  was  in  this  case  a  condition  prece- 
dent to  the  obligation  of  pa^anent.  The  plaintiff  must  per- 
form the  condition  before  he  is  entitled  to  recover  anything 
under  the  contract;  and  he  has  no  right  to  renounce  his 
agreement  and  recover  upon  a  quantum  meruit.  The  law 
will  not  admit  of  the  monstrous  absurdity  that  a  man  may 
volimtarily  and  without  cause  violate  his  agreement,  and 
make  the  very  breach  of  that  agreement  the  foundation  of 
an  action  which  he  could  not  maintain  under  it."°^  So, 
generally,  where  a  man  agrees  to  perform  a  particular  un- 
dertaking for  a  fixed  compensation,  failure  to  complete  per- 
formance will  defeat  a  claim  for  any  compensation. ^- 

The  rule,  of  course,  does  not  apply  where  the  contract 
is  construed  to  be  severable,  as  where  different  items  of  serv- 
ice are  to  be  separately  remunerated,  or  compensation  is  to 
be  paid  in  fixed  instalments.^'  And  in  a  number  of  states 
the  rule  has  been  so  far  modified  as  to  permit  of  recovery 
upon  quantum  meruit,  where  the  services  rendered  have 

Payne,  71  111.  408;  Peterson  v.  Mayer,  46  Minn.  468,  49  N.  W,  245; 
Diefenbaek  v.  Stark,  56  Wis.  462,  14  N.  W,  621. 

50  Stark  v.  Parker,  2  Pick.  (Mass.)  267,  13  Am.  Dec.  425. 

51  Stark  V,  Parker,  supra. 

52Reab  V.  Moor,  19  -Johns.  (N.  Y.)  337;  Davis  v.  Maxwell,  12 
Mete.  (Mass.)  286;  Hansell  v.  Erickson,  28  111.  257;  Diefenbaek 
V,  Stark,  56  Wis.  462,  14  N.  W.  621. 

63  Capron  v.  Strout,  11  Nev.  304;  Thayer  v,  Wadworth,  19  Pick. 
(Mass.)  349.  A  contract  with  a  teacher  to  teach  ten  months  at 
a  given  sum  per  month  has  been  held  entire.  Wilson  v.  Board  of 
Education,  63  Mo.  137.    See  Reab  v.  Moor,  19  Johns.  (N.  Y.)  337. 


256  THE  LAW  OP  AGENCY. 

been  of  distinct  benefit  to  the  principal,  and  their  value  to 
him  is  not  dependent  upon  completion  of  the  contract.^* 
Said  the  court  in  an  early  New  Hampshire  case:  "Where 
a  party  contracts  to  perform  certain  work  and  to  furnish 
materials,  as  for  instance  to  build  a  house,  and  the  work 
is  done,  but  with  some  variations  from  the  mode  prescribed 
by  the  contract,  yet  if  the  other  party  has  the  benefit  of 
the  labor  and  materials  he  is  bound  to  pay  so  much  as  they 
are  reasonably  worth.  The  party  who  contracts  for  labor 
merely,  for  a  certain  period,  does  so  with  full  knowledge 
that  he  must,  from  the  nature  of  the  case,  be  accepting  part 
performance  from  day  to  day,  and  with  knowledge  also 
that  the  other  party  may  eventually  fail  of  completing  the 
entire  term.  If  under  such  circumstances,  he  actually  re- 
ceives a  benefit  from  the  labor  performed,  over  and  above 
the  damage  occasioned  by  the  failure  to  complete,  there  is 
as  much  reason  why  he  should  pay  the  reasonable  worth 
of  what  has  thus  been  done  for  his  benefit,  as  there  is  when 
he  enters  and  occupies  the  house  which  has  been  built  for 
him,  but  not  according  to  the  stipulations  of  the  con- 
tract. "^= 

§  158,  Oblig-ation  to  reimburse.  An  agent  is  entitled 
to  reimbursement  for  such  expenses  incurred  as  were  rea- 
sonably necessary  for  proper  performance  of  the  agency 
and  which,  therefore,  must  have  been  in  contemplation  by 
the  principal  when  he  made  the  appointment.'^"     The  right 

•-.iBriUon  v.  Turner,  6  N.  H.  4S1,  2G  Am.  Dec.  713;  Allen  v. 
McKibben,  5  Mich.  440;  McClay  v.  Hedge,  18  Iowa,  66;  Parcell  v. 
McComlier,  11  Neb.  209,  7  N.  W.  529;  Duncan  v.  Baker,  21  Kan.  99. 

66  Britton  v.  Turner,  G  N.  H.  481,  26  Am.  Dec.  713. 

66  Bibb  V.  Allen,  149  U.  S.  481;  Rosenstock  v.  Tormey,  32  Md. 
169,  3  Am.  Rep.  125;  Searing  v.  Butler,  69  111.  575;  Beach  v. 
Branch.  57  Oa.  362. 


OBLIGATIONS   OF   PRINCIPAL   TO   AGENT.  257 

to  reimbursement  grows  out  of  the  agent's  implied  author- 
ity to  do  what  is  reasonably  necessary  in  furtherance  of 
the  agency,  which,  in  turn,  implies  a  promise  by  the.  prin- 
cipal to  bear  the  necessary  expense  of  such  proper  per- 
formance.^^ So,  even  in  cases  where  compensation  is  con- 
ditioned on  complete  performance,  and  employment  is  at 
will  of  the  principal,  the  agent  maj^  claim  reimbursement 
for  contemplated  expenditures  made  before  revocation  of 
liis  authority.^®  An  agent  is  not  entitled  to  reimburse- 
ment for  expenditure  neither  expressly  or  impliedly  au- 
thorized.^^ Nor  could  he  recover  for  expenses  necessitated 
by  his  own  negligence,  or  failure,  in  any  manner,  to  prop- 
erly perform  his  duties.®" 

§  159.  Obligation  to   indemnify,     (a)  In   general.    If 

in  the  due  execution  of  his  authority,  and  through  no  fault 
of  his  o-\\Ti,  an  agent  sustains  personal  loss,  or  incurs  per- 
sonal liability,  the  law  implies  an  obligation  in  the  princi- 
pal to  indemnify  him  for  the  loss  sustained.®^  Thus,  where 
an  agent,  without  knowledge  of  the  fact,  sold  cotton  for  his 
principal,  which  had  been  falsely  packed,  and  was  forced 
to  refund  the  purchase  price,  he  could  recover  from  the 
principal  the  amount  so  refunded ;  '^-  and  where  an  agents 
who  purchased  property  for  his  principal,  was  sued  and 
compelled  to  pay  the  purchase  price,  he  could  recover  the 

67  Bibb  V.  Allen,  149  U.  S.  481. 

B8  Chambers  v.  Seay,  73  Ala.  372;  Urqiihart  v.  Mortgage  Co.,  85 
Minn.  69,  88  N.  W.  264. 

soKeyes  v.  Westford,  17  Pick.  (Mass.)   273. 

60  Brown  v.  Clayton,  12  Ga.  574;    Godman  v.  Meixel,   65  Ind. 
32;  Maitland  v.  Martin,  86  Pa.  St.  120. 

61  Powell  V.  Trustees,  19  Johns.   (N.  Y.)   284;  Denny  v.  Wheel 
Wright,  60  Miss.  733;  Saveland  v.  Green,  36  Wis.  612. 

62  Beach  v.  Branch,  57  Ga.  362. 

17 


258  THE  LAW  OF  AGENCY. 

amoimt  so  paid,  together  with  the  costs  to  which  he  had 
been  put.^^  So,  where  an  agent  under  direction  of  his 
principal  innocently  commits  a  trespass,  or  sells  goods  be- 
longing to  a  stranger,  he  is  entitled  to  indemnity  for  the 
liability  incnrred.®*  And  where  an  agent  authorized  to 
make  a  contract  for  his  principal,  executes  the  same  in  his 
o\m  name,  and  becomes  personally  liable  in  damages  be- 
cause the  principal  fails  to  perform,  recovery  against  the 
principal,  by  way  of  indemnity,  may  be  had.*'^ 

(b)  Illegal  acts.  As  we  saw  in  an  early  chapter,  an 
agent  can  not  recover  compensation,  nor  in  any  way  en- 
force the  contract  of  employment,  where  the  purpose  of  the 
agency  is  unlawful.®^  This  same  principle  applies  in  de- 
termining the  right  to  indemnity,  which  necessarily  is 
based  upon  express  or  implied  agreement  between  the  par- 
ties. There  can  be  no  contribution  between  wrongdoers. 
Hence,  where  an  agent  incurs  liability  by  knowingly  per- 
forming an  illegal  act,  such  as  selling  liquor  contrary  to 
statute,  he  can  not  claim  indemnity  against  the  principal ; 
nor  enforce  an  express  obligation  intended  to  secure  the 
same."^     So,  where  an  agent  knowingly  commits  a  trespass, 

"Clark  T.  Jones,  16  Lea  (Tenn.),  351, 

«*  Moore  v.  Appleton,  26  Ala.  633;  Drummond  v.  Humphreys,  39 
Me.  347;  Castle  v.  Noyes,  14  N.  Y.  329;  Nelson  v.  Cook,  17  111.  443 
Where  a  railway  conductor  incurs  liability  by  ejecting  a  passen- 
ger, in  pursuance  of  instructions,  for  failure  to  produce  such  a 
ticket  as  the  conductor  was  directed  to  require,  indemnity  could 
be  had  against  the  company.    Howe  v.  Railway  Co.,  37  N.  Y.  297. 

«5  Saveland  v.  Green,  36  Wis.  612;  Greene  v.  Goddard,  9  Mete. 
(Mass.)  212. 

68  Ante  §  38. 

"Bixby  V.  Moor,  51  N.  H.  402;  Coventry  v.  Barton,  17  Johns. 
(N.  Y.)  142,  8  Am.  Dec.  376.  If  from  lack  of  knowledge  of  facts, 
the  agent  does  not  know  that  the  act  is  illegal,  then  he  may  re- 


OBLIGATIONS   OF   PRINCIPAL   TO   AGENT.  259 

or  sells  goods  for  liis  principal,  with  knowledge  of  an  ad- 
verse title,  his  voluntary  participation  in  the  wrongdoing 
defeats  his  claim  for  indemnity.°^ 

§  160.  Lien  of  agent/  Liens,  in  modern  times,  have  be- 
come quite  generally  a  subject  of  legislative  enactment. 
There  still  subsists,  however,  a  number  of  common  law  liens, 
and  among  them  the  lien  of  an  agent.  A  lien,  at  law,  is 
the  right  to  retain  possession  of  the  goods  of  another  to 
secure  payment  of  a  debt  due  from  the  o^\Tier.  A  simple 
example  of  a  lien  is  the  right  of  an  innkeeper  to  retain 
possession  of  the  baggage  of  a  guest  to  secure  payment  of 
board.  A  lien  is  either  general  or  special.  A  right  to  re- 
tain any  or  all  goods  in  possession  to  secure  a  general  debt 
or  balance  due  from  the  owner  would  be  a  general  lien 
A  right  to  retain  merely  such  property  as  is  affected  by  the 
demand,  or  out  of  dealings  with  which  the  claim  arises,  is 
called  a  special  or  particular  lien. 

Factors,  bankers  and  attorneys  have,  at  common  law,  a 
general  lien.  Thus  a  factor  may  retain  all  goods  of  his 
principal  in  his  possession,  and  the  proceeds  of  such  as 
have  been  sold,  to  secure  a  general  balance  due  him.^^  So, 
a  banker  may  retain  all  securities  deposited  by  a  cus- 
tomer; ''°  and,  an  attorney  has  a  general  lien  upon  all  docu- 

cover,  though,  in  fact,  it  was  illegal.  Irwin  v.  Williar,  110  U.  S. 
499;  Bibb  v.  Allen,  149  U.  S.  498. 

C8  Drummond  v.  Humphreys,  39  Me.  347;  Moore  v.  Appleton,  26 
Ala.  633;  Mohr  v.  Miessen,  47  Minn.  228,  49  N.  W.  862. 

69Knapp  V.  Alvord,  10  Paige  (N.  Y.),  205,  40  Am.  Dec.  241; 
Winter  v.  Coit,  7  N.  Y.  288,  57  Am.  Dec.  522;  McGraft  v.  Rugee, 
GO  Wis.  406,  19  N.  W.  530;  Johnson  v.  Clark,  20  Ind.  App.  247,  50 
N.  E.  762. 

TO  Swift  V.  Tyson,  16  Pet.  (U.  S.)  L 


2G0  THE  LAW  OF  AGENCY. 

ments,  and  other  chattels,  which  came  into  his  possession 
in  his  professional  capaeity.'^^ 

§  161.  Special  liens,  (a)  In  general.  Except  in  the 
cases  cited,  an  agent  has  merely  a  special  or  particular  lien 
upon  the  goods  of  his  principal  J^  Thus,  an  agent  who  pur- 
chased goods  for  his  principal,  and  took  possession,  would 
have  a  lien  on  them  for  his  commission,  but  could  not  re- 
iain  them  to  secure  an  independent  debt,  such  as  commis- 
sions earned  in  another  transaction.'^^  So,  a  broker  em- 
])loyed  to  make  a  sale,  or  to  secure  a  loan,  would  have  a  lien 
for  his  commission  upon  such  proceeds  of  the  sale,  or  loan, 
as  came  into  his  possession  in  his  capacity  as  agent.''*  And 
where  an  agent  obtains  possession  of  goods  from  a  carrier 
by  paying  freight  due  upon  them,  he  would  have  a  lien 
upon  the  particular  goods  to  secure  reimbursement.^^ 

(b)  Requisites  of  Uen.  A  lien  wall  attach  only  to  such 
goods  of  the  principal  as  come  lawfully  into  possession  of 
the  agent  in  his  capacity  as  agent ; ''®  and  will  not  take 

7iMcPherson  v.  Cox,  96  U.  S.  404;  Bowling  Green  Bank  v.  Todd, 
52  N.  Y.  489;  Hurlbert  v.  Brigham,  56  Vt.  368. 

72McKenzie  v.  Nevius,  22  Me.  138,  38  Am.  Dec.  291;  Vinton  v. 
Baldwin,  95  Ind.  433.  Tlie  lien  of  an  agent  employed  for  a  par- 
ticular transaction  is  ordinarily  a  particular  lien,  and  is  con- 
fined to  retention  of  the  property  for  services  and  disbursements 
in  reference  to  that  property  only.    Mechem  on  Agency,  §  685.' 

73  Allen  V.  Meggulre,  15  Mass.  496;  Scott  v.  Jester,  13  Ark.  438; 
Adams  v.  Clark,  9  Cush.  (Mass.)  215. 

7*  Vinton  v.  Baldwin,  95  Ind.  433. 

76  White  V.  Railway  Co.,  90  Ala.  254,  7  South.  910.  An  agent 
has  a  right  to  a  lien  for  his  commissions,  advances  and  services 
In  and  about  the  property  or  thing  intrusted  to  his  agency  when 
they  are  proper,  necessary  or  incident  thereto.  Grauman  v.  Reese, 
13  Ky.  Law  Rep.  683. 

7eMrFarland  V.  "Wheeler,  26  Wend.  (N.  Y. )  467;  Collins  v. 
Buck,  63  Me.   459;    Sawyer  v.  Lorillard,  48  Ala.   332;    Elliott  v. 


OBLIGATIONS   OF   PRINCIP.VL   TO   AGENT.  261 

I)recedence  over  existing  claims  of  third  persons."  The 
possession  must  be  continuous,  and  hence  a  voluntary  sur- 
render of  the  property  will  terminate  the  lien^  which  will 
not  reattach  upon  recovery  of  possession.'^  So,  a  lien  will 
not  attach  if  it  be  inconsistent  with  the  terms  upon  which 
possession  is  secured.'^®  Thus,  where  an  agent  is  author- 
ized to  sell  goods  and  to  pay  a  debt  with  the  proceeds  of 
sale,  a  lien  would  not  attach  to  such  proceeds.^  So,  gen- 
erally, an  agent  may  forego  his  lien  by  agreement,  or  waive 
the  same  by  accepting  other  security.^^ 

(c)  Enforcement  of  lien.  In  the  absence  of  statute,  a 
lien  can  not  be  enforced  by  summary  sale  of  the  property.®- 
It  is  a  mere  right  to  possession,  which  may  be  set  up  by 
way  of  defense  in  an  action  by  the  owner  to  recover.  To 
realize  upon  a  lien,  judgment  must  be  secured,  upon  which 
execution  can  issue  against  the  property;  or  a  decree  of 
sale  must  be  obtained  from  a  court  of  equity. ^^     An  excep- 

Bradley,  23  Vt.  217.  Where  an  agent  incurs  liability  upon  faith 
of  the  solvency  of  his  principal,  and  the  latter  becomes  insolvent 
before  the  proceeds  of  such  liability  have  come  into  his  actual  pos- 
session, and  while  they  are  yet  in  reach  of  the  agent,  the  latter 
has  a  lien  upon  them  for  his  protection  and  indemnity.  Muller  v. 
Pondir,  55  N.  Y.  325,  14  Am.  Rep.  259. 
"Bryce  v.  Brooks,  26  Wend.  (N.  Y.)  374. 

78  Robinson  v.  Larrabee,  63  Me.  116;  Nash  v.  Mosher,  19  Wend. 
(N.  Y.)  431;  Nevan  v.  Roup,  8  Iowa,  207;  Rosenbaum  v.  Hayes, 
8  N.  D.  461,  79  N.  W.  987. 

79  Oilman  v.  Brown,  1  Mason  (U.  S.),  191,  Fed.  Cas.  No.  5,441. 
Haebler  v.  Luttgen,  61  Minn.  315,  63  N.  W.  720. 

80  Jarvis  v.  Rogers,  15  Mass.  389. 

81  Chandler  v.  Belden,  18  Johns.  (N.  Y.)  157;  Sawyer  v.  Loril- 
lard,  48  Ala.  332;  Hutchins  v.  Olcutt,  4  Vt.  549,  24  Am.  Dec.  634; 
Story  V.  Flournoy,  55  Ga.  56;   Jones  on  Liens,  §  1011. 

82  Jones  on  Liens,  §  1018. 

83  Fox  V.  McGregor,  11  Barb.  (N.  Y.)  41;  Bailey  v.  Shaw,  24  N. 
H.  297,  55  Am.  Dec.  241;    Story  on  Agency,  §  371. 


262  THE  LAW  OF  AGENCY. 

tion  exists  in  favor  of  factors,  who  have  made  advances 
upon  goods  in  their  possession;  **  and  so,  in  the  ease  of  a 
bailment  or  pledge,  the  bailee,  after  demand  and  notice, 
may  usually  enforce  his  lien  by  a  sale  of  the  property.®^ 

§  162.  Stoppag-e  in  transitu.  Where  an  agent  purchases 
goods  with  his  own  funds,  or  upon  his  individual  credit, 
and  consigns  them  to  his  principal,  the  relation  between 
the  parties  is  so  analogous  to  that  of  unpaid  vendor  and 
purchaser,  that  the  law  permits  the  agent  to  exercise  the 
right  of  a  vendor,  and  to  stop  the  goods  in  transit,  if  the 
principal  becomes  insolvent.^^  The  exercise  by  an  agent 
of  the  right  of  stoppage  in  transitu  would,  of  course,  be  sub- 
ject to  the  same  rules  and  limitations  as  are  applicable  in 
cases  of  the  exercise  of  the  right  by  other  vendors.^" 

84  Hilton  V.  Vanderbilt,  82  N.  Y.  591;  Frothingham  v.  Everton, 
12  N.  H.  239;  Walker  Co.  v.  Produce  Co.,  113  Iowa,  428,  85  N.  W. 
614. 

85  Parker  v.  Brancker,  22  Pick.  (Mass.)  40. 

«6Newliall  V.  Vargas,  13  Me.  93,  29  Am.  Dec.  489;  Seymour  v. 
Newton,  105  Mass.  272;  Farmers',  etc..  Bank  v.  Logan,  74  N.  Y. 
5C8;  Moors  v.  Kidder.  106  N.  Y.  32,  12  N.  E.  818. 

87  Benjamin  on  Sales,  §  829. 


TABLE  OF  CASES  CITED 


References  are  to  pages. 

A. 

Abbey  v.  Chase,  6  Cush.  (Mass.)  54 213 

Abbot  V.  Hapgood,  150  Mass.  248,  22  N.  B.  907 75 

Abbot  V.  Jack,  136  Cal.  510,  69  Pac.  257 9 

Abell  V.  Howe,  43  Vt.  403 186 

Abernathy  v.  Wheeler,  92  Ky.  320,  17  S.  W.  858 219 

Abrahams  v.  Weiller,  87  111.  179 138 

Abrams  v.  Ervin.  9  Iowa  87 29 

Adams  V.  Clark,  9  Cush.  (Mass.)  215 260 

Adams  V.  Powers,   52  Miss.   828 78 

Adams  v.  Robinson,  65  Ala.  586 226 

Adams  Express  Co.  v.  Trego,  35  Md.  47 123 

Adamson  v.  Hartman,  40  Ark.  58 53 

Adriance  v.  Rutherford,  57  Mich.  170,  23  N.  W.  718 104,  250 

Advertiser  and  Tribune  Co.  v.  Detroit,  43  Mich.  116 185 

Aetna  Ins.  Co.  v.  Iron  Co.,  21  Wis.  458 84 

Ahern  v.  Baker,  34  Minn.  98,  24  N.  W.  341 93,  94 

Ahern  v.  Goodspeed,  72  N.  Y.  108 133 

Akers  v.  Ray  County  Bank,  63  Mo.  App.  316 80 

Albertson  v.  Ashton,  102  111.  50 2 

Albright  v.  Atchison,  etc.,  Ry.,  137  Iowa  631,  115  N.  W.  219..  124 

Albright  v.  Phoenix  Ins.  Co..  72  Kan.  591,  84  Pac.  383 239 

Aldrich  v.  Wilmarth,  3  S.  D.  525,  54  N.  W.  811. . .  129,  135,  138,  141 

Alexander  v.  Jones,  64  Iowa  207,  19  N.  W.  913 81^  148 

Alexander  v.  Haskins,  68  Iowa  73 17 

Allen  V.  Davis,  13  Ark.  28 100 

Allen  V.  Megguire,  15   Mass.   496 260 

Allen  V.  McKibben,  5  Mich.  449 256 

Allen  V.  Pub.  Co.,  81  Wis.  120,  50  N.  W.  1093 189 

Allen  V.  Ry.  Co.,  150  Mass.  200,  22  N.  E.  917 187 


264  TABLE  OF  CASES  CITED. 

Heferences  are  to  pages. 

Allen  V.  St.  Louis  Bank,  120  U  S.  20,  7  Supp.  Ct.  460 155 

Allen  V.  Suydam,  20  Wend.  (N.  Y.)  321.  32  Am.  Dec.  555....     231 

Allen  V.  Williamsburg  Savings  Bank,  66  N.  Y.  314 62 

Allen  V.  Withrow,  110  U.  S.  119 54 

Allin  V.  Williams,  97  Cal.  403,  32  Pac.  441 69,  79 

Allis  V.  Goldsmith,  22  Minn.  123 120 

Allis  V.  Voigt.  90  Mich.  125,  51  N.  W.  190 142 

Allred  v.  Bray,  41  Mo.  484 73 

Allyn  V.  State,  21  Neb.  593.  33  N.  W.  212 40 

Alsop  V.  Caines,  10  Johns  (N.  Y. )  396 197,  222 

American  Bonding  Co.  v.  Ensey,  105  Md.  211,  65  Atl.  921. .  122,  128 
American  Loan  &  Trust  Co.  v.  Billings,  58  Minn.  187,  59  N. 

W.  998 100,  101,  107 

American  Surety  Co.  v.  Pauley,  170  U.  S.  133 187 

American  Trust  Co.  v.  Boone,  102  Ga.  202 17 

Ames  V.  Union  Ry.  Co.,  117  Mass.  541,  19  Am.  Rep.  426 207 

Ames  V.  Gilman,  10  Mete.  (Mass.)  239 25 

Ames  V.  Railway  Co.,  12  Minn.  413 197 

Anderson  v.  Adams,  43  Ore.  621.  74  Pac.  215 21G 

Anderson  v.  Pearce,  36  Ark.  293.  38  Am.  Rep.  39 164 

Anderson  v.  State,  2  Ga.  370 242 

Anderson  v.  Supreme  Council,  135  N.  Y.  107,  31  N.  E.  1092..       59 

Anderson  v.  Timerlake,  114  Ala.  377,  22  South.  431 211 

Anderson  v.  Watson,  3  C.  &  P.  214  (Eng.) 157 

Anderton  v.  Shoup,  17  Ohio  St.  125 165 

Andrews  v.  Estes,  11  Me.  267,  26  Am.  Dec.  521 167,  168,  211 

Andrews  v.  Aetna  Ins.  Co.,  92  N.  Y.  596 87 

Angle  V.  Railway  Co.,  151  U.  S.  1 206 

Anglo-Cal.  Bank  v.  Cerf,  149  Cal.  393,  81  Pac.  1081 114 

Ansley  v.  Gordon,  61  Ga.  482 251 

Antram  v.  Thorndell,  74  Pa.  St.  442 116 

Applegate  v.  Moffitt,  60  Ind.  104 133 

Appleton  Bank  v.  McGilvray,  4  Gray   (Mass.)    518,  64  Am. 

Dec.  92 35 

Arden  v.  Soileau,  16  La.  28 131 

Arff  V.  Ins.  Co.,  125  N.  Y.  57,  25  N.  E.  1073 33,  34,  36 

Argersinger  v.  MacNaughton,  114  N.  Y.  535,  21  N.  E.  1022. . .     155 
Arkansas,  etc.,  Ry.  Co.  v.  Loughridge,  65  Ark.  907,  45  S.  W. 

907     58 

Armltage  v.  WIdoe,  86  Mich.  124 10,  19,  70,  76 

Armour  v.  Ross,  110  Ga.  403,  35  S.  E.  787 115 


TABLE  OF  CASES  CITED.  265 

References  are  to  pages. 

Arthur  v.  Card,  3  Colo.  App.  133,  32  Pac.  343 114 

Ash  V.  Gui,  97  Pa.  St.  493,  39  Am.  Rep.  818 13,  14 

Ashley  v.  Bird,  1  Mo.  460 120 

Atchison,  etc.  Ry.  Co.  v.  Watson,  71  Kan.  696,  81  Pac.  499 128 

Atkins  V.  Johnson,  43  Vt.  78,  5  Am.  Rep.  260 42 

Atlanta  Savings  Bank  v.  Spencer,  107  Ga.  629,  33  S.  E.  878. .       93 

Atler  V.  Fink,  75  Mo.  100,  43  Am.  Rep.  385 42,48 

Atterbury  v.  Hopkins,  122  Mo.  App.  172,  99  S.  W.  11 253 

Attril  V.  Patterson,  58  Md.  220 248 

Audenried  V.  Betteley,  8  Allen  (Mass.)  302 108 

Authors  &  Newspapers  Assn.  v.  O'Gorman,  147  Fed.  616 141 

Avakin  v.  Noble,  121  Cal.  216,  53  Pac.  559 72 

Avery  v.  Dougherty,  102  Ind.  443,  52  Am.  Rep.  680,  2  N.  E. 

123    164,  211 

Aycock  V.  Braun,  66  Tex.  201,  18  S.  W.  500 48 

Ayrault  v.  Pac.  Bank,  47  N.  W.  570,  7  Am.  Rep.  489 39.  243 

Ayers  v.  Probas  Co.,  14  Kan.  141 63 


B. 


Bahcock  V.  Beman,  11  N.  T.  200 214 

Backman  v.  Charlestown,  42  N.  H.  125 148 

Badger  v.  Bank,  26  Me.  428 154 

Bailey  v.  Bensley,  87  111.  556 132,  228 

Bailey  v.  Shaw,  24  N.  H.  297,  55  Am.  Dec.  241 261 

Bailey  &  Co.  v.  West  Lumber  Co.,  1  Ga.  App.  398,  58  S.  E.  120       80 

Bain  V.  Brown,  56  N.  Y.  285 235,  239 

Baird  v.  Shipman,  132  111.  16,  23  N.  E.  384 221 

Baird  v.  Walker,  12  Barb.  (N.  Y.)  298 242 

Baker  v.  Kansas  City,  etc.,  Ry.  Co.,  91  Mo.  79,  3  S.  W.  486. .       61 
Baker  v.  New  York  Nat.  Bank,  100  N.  Y.  31,  53  Am.  Rep.  150     20.t 

Baker  v.  Produce  Co.,  113  Mich.  533,  71  N.  W.  866 135 

Baker  v.  Witten,  1  Okl.  160,  30  Pac.  491 63 

Baldwin  V.  Leonard,  39  Vt.  260,  94  Am.  Dec.  324 210 

Baldwin  v.  Potter,  46  Vt.  402 238 

Baldwin  v.  Tucker,  112  Ky.  282,  65  S.  W  841 5 

Ballard  v.  Ins.  Co.,  119  N.  C.  187,  25  S.  E.  956 101 

Ballou  V.  Talbot,  16  Mass.  461,  8  Am.  Dec.  146 166,  216 

Baltzen  v.  Nicolay,  53  N.  E.  470 210,  216,  217 

Bank  of  Batavia  v.  Ry.  Co.,  106  N.  Y.  195,  12  N.  E.  433. .  191,  192 


266  TABLE  OF  CASES  CITEI\. 

References  are  to  pages. 

Bank  of  British  America  v.  Hooper,  5  Gray  (Mass.)   567,  66 

Am.  Dec.  390 164 

Bank  of  Manchester  v.  Slason,  13  Vt.  334 171,  214 

Bank  of  Morgantown  v.  Hay,  143  N.  C.  326,  55  S.  E.  811 138 

Bank  v.  Neal,  22  How.  (U.  S.)  107 152 

Bank  of  N.  Y.  etc.  Assn.  v.  Trust  Co.,  143  N.  Y.  599,  38  N. 

E.    713 193 

Bank  of  North  America  v.  Embury,  21  How.  Prac.  (N.  Y.) 

14     54 

Bank  of  Owensboro  v.  Western  Bank,  13  Bush.  (Ky.)  526,  26 

Am.  Rep.  211 231 

Banks  v.  Everest,  35  Kan.  687,  12  Pac.  141 142 

Banner  Tob.  Co.  v.  Jennison,  48  Mich.  459,  12  N.  W.  C55. .   142,  153 

Bannon  v.  Warfield,  42  Md.  22 231 

Banorgee  v.  Hovey,  5  Mass.  11 2,  51 

Barbour  v.  Wiehle,  116  Pa.  St.  308,  9  Atl.  520 185 

Barker  v.  Garvey,  83  HI.  184 54 

Barker  v.  Knickerbocker  Ins.  Co.,  24  Wis.  630 251 

Barker  v.  Mechanics  Fire  Ins.  Co.,  3  Wend.  (N.  Y.)  94 165 

Barlow  v.  Cong.  Soc,  8  Allen   (Mass.)  460 165,  166 

Barnard  v.  Campbell,  55  N.  Y.  456,  14  Am.  Rep.  289,  s.  c.  58 

NY  73,  17  Amn.  Rep.  208 146,  202,  204 

Barnard  v.  Coffin,  141  Mass.  37,  6  N.  E.  364. . ., 32,  37 

Barnard  V.  Kellogg,  10  Wall.  (U.  S.)  383 132 

Barnes  v.  Boardman,  149  Mass.  106,  21  N.  E.  308 118 

Barnes  v.  Hannibal,  71  Mo.  449 129 

Barnes  v.  State,  19  Conn.  398 40 

Barnet  v.  Gluting,  3  Ind.  App.  415,  29  N.  E.  927 117,  118 

Barnsdall  v.  O'Day,  67  C.  C.  A.  278,  134  Fed.  828 SO 

Barree  v.  Cape  Girardeau,  197  Mo.  382,  95  S.  Vv'.  330 188 

Barrett  v.  Newby,  127  Fed.  656 173 

Barrett  v.  Railway  Co.,  45  N.  Y.  628 158 

Barron  v.  Tucker,  55  Vt.  388,  38  Am.  Rep.  684 47 

Barrows  v.  Cushway,  37  Mich.  481 101 

Bartholomew  v.  Jackson,  22  Johns  (N.  Y.)  28,  11  Am.  Dec. 

237     246 

Bartlett  v.  Board,  59  111.  371 204 

Bartlett  v.  Hamilton,  46  Me.  435 241 

Bartlett  v.  Raymond,  139  Mass.  275 210 

Bartlett  v.  Sparkman,  95  Mo.  130,  8  S.  W.  400 114,  229 

Bartlett  v.  Tufkor,  104  Mass.  330,  6  Am.  Rep.  240 216 


TABLE  OF  CASES  CITED.  267 

References  are  to  pages. 

Bartley  v.  Rhodes  (Tex.  Civ.  App.)  33  S.  W.  604 61,  116 

Barton  v.  Gray,  57  Mich.  634 .54 

Barton  v.  Moss,  32  111.  50 237 

Bateman  in  re.,  145  N.  Y.  623,  40  N.  E.  10 176 

Batty  V.  Carswell,  2  Johns  (N.  Y.)  4S 151,  152 

Baum  V.  DuBois,  43  Pa.  St.  260 125 

Baum  V.  Mullin,  47  N.  Y.  577 19 

Bautz  V.  Adams,  131  Wis.  152,  111  N.  W.  69 151 

Baxter  v.  Lamont,  60  111.  237 128,  138 

Baxter  v.  Sherman,  73  Minn.  434,  76  N.  W.  211 199,  200 

Beach  v.  Branch,  57  Ga.  362 256,  257 

Beardslee  v.  Richardson,  11  Wend.  (N,  Y.)  25,  25  Am.  Dec. 

596     233 

Beal  V.  Merriman,  11  Mete.  (Mass.)  470 112 

Beal  V.  Polhemus,  67  Mich.  130,  34  N.  W,  532 47 

Bean  v.  Pioneer  Milling  Co.,  66  Cal.  451,  6  Pac.  86 168 

Beck  V.  Bellamy,  93  N.  C.  129 15S 

Bedell  v.  Janey,  9  111.  193 242 

Beebe  v.  DeBaum,  8  Ark.  510 67 

Beecher  v.  Bennett,  11  Barb.   (N.  Y.)   380 100 

Bell  V.  Josselyn,  3  Gray   (Mass.)  309,  63  Am.  Dec.  741 221 

Belfield  v.  Supply  Co.,  189  Pa.  St.  189,  42  Atl.  131 199 

Bellinger  v,  Collins,  117  Iowa  173,  90  N.  W.  609 90 

Bell's  Gap.  Ry.  Co.  v.  Cristy,  79  Pa.  St.  54,  21  Am.  Rep.  39. .       75 

Benedict  v.  Smith,  10  Paige  (N.  Y. )  126 158 

Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dec.  384 

, 23,  63,  130,  156 

Benjamin  v.  Dockham,  134  Mass.  418 3 

Bennecke  v.  Insurance  Co.,  105  U.  S.  355 118 

Bennett  v.  Ives,  30  Conn.  329 219 

Bennett  v.  Lathrop,  71  Conn.  613,  42  Atl.  634 15 

Benny  v.  Pegram,  18  Mo.  191,  59  Am.  Dec.  298 155 

Benoit  v.  Inhabitants  of  Conway,  10  Allen   (Mass.)   528 93 

Benson  v.  Carr,  73  Me.  76 158 

Bentley  v.  Doggett,  51  Wis.  224,  8  N.  W.  155...  135,  136,  137,  140 

Benton  v.  Beattie,  63  Vt.  186,  22  Atl.  422 40 

Bergen  v.  Frisbie,  125  Cal.  168,  57  Pac.  784 47 

Berger's  Appeal.  96  Pa.  St.  443 91 

Bergh  v.  Warner,  47  Minn.  250;  50  N.  W.  77 63 

Bergner  v.  Bergner,  219  Pa.  St.  113,  67  Atl.  999 117,  236 

Bergtholdt  v.  Porter  Bros.  Co.,  114  Cal.  681,  46  Pac.  738 114 


268  T-VBLE  OF  CASES  CITED. 

References  are  to  pages. 

Berkson  v.  K.  C.  Ry.  Co.,  144  Mo.  211,  145  S.  W.  1119......     119 

Berry  v.  Barnes,  23  Ark.  411 148 

Berry  v.  Chase,  77  C.  C.  A.  161,  146  Fed.  625 173 

Berry  V.  Skinner,  30  Md.  567 105 

Bertholf  v.  Quinlan,  6S  111.  297 201 

Bertram  v.  Godfrey,  1  Knapp  P.  C  381  (Eng.) 227 

Bessent  v.  Harris,  63  N.  C.  542 123,  229 

Best  V.  Gunther,  125  Wis.  518,  104  N.  W.  82 97 

Best  V.  Krey,  S3  Minn.  32,  85  N.  W.  822 113 

Beveridge  v.  Rawson,  51  111.  504 73 

Beyer  v.  Bush,  50  Atl.  19 224 

Beymer  v.  Bonsall,  79  Pa.  St.  298 174,  176 

Bibb  V.  Allen,  149  U.  S.  481,  13  Sup.  Ct.  950. .. .   133,  256,  257,  259 
Bickford  v.  First  National  Bank,  42  111.  238,  89  Am.  Dec.  436     210 

Bickford  v.  Menier,  107  N.  Y.  490,  14  N.  E.  438 149,  154 

Bigelow  V.  Benedict,  70  N.  Y.  202,  26  Am.  Rep.  573 48 

Bigelow  V.  Walker,  24  Vt.  149,  58  Am.  Dec.  156 156 

Big  Four  Willmington  Coal  Co.  v.  Wren,  115  111.  App.  331..     106 

Bigg  V.  Stone,  3  Sm.  &  Grif.  592  (Eng.) 81 

Bigham  v.  Railway  Co.,  79  Iowa  534,  44  N.  W.  805 59 

Billingsley  v.  Dawson,  27  Iowa  210 • 98 

Bingham  v.  Supervisors,  6  Minn.  136 15,7 

Birdsall  v.  Clark,  73  N.  Y.  73,  29  Am.  Rep.  105 30 

Birmingham  Mat.  Club  v.  McCarty  (Ala.)  44  South  642....     198 

Bishop  V.  Ranney,  59  Vt.  316,  7  Atl.  820 254 

Bissel  V.  Terry,  69  111.  184 127 

Bixby  V.  Moore,  51  N.  H.  402 42,  258 

Black  Lick  Lbr.  Co.  v.  Camp  Const.  Co.,  63  W.  Va.  477,  60  S. 

E.  409 113 

Blacknan  v.  Parish,  59  N.  C.  70,  78  Am.  Dec.  239 53 

Blackstone  v.  Buttermore,  53  Pa.  St.  266 95,  100,  101,  250,  252 

Blackwell  v.  Ketcham,  53  Ind.  184 140,  152 

Blanchard  v.  Jones,  101  Ind.  542 239 

Blanchard  v.  Kaull,  44  Ca].  440 167 

Blanchard  v.  Page,  8  Gray  (Mass.)  281 222 

Bli.ss  V.  Sneath,  103  Cal.  43,  36  Pac.  1029 223 

Blivcn  V.  Railway  Co.,  36  N.  Y.  403 238 

Blood  V.  French,  9  Gray  (Mass.)  197 157 

Blood  V.  Goodricli.  12  Wend.  (N.  Y.)  525,  27  Am.  Dec.  152..       78 

Blood  V.  LaSerena  Land  Co.,  113  Cal.  22],  41  Pac.  1017 118 

Blot  V.  Boiceau,  3  N.  Y.  78,  51  Am.  Dec.  345 226,  227 


TABLE  OP  CASES   CITED,  269 

References  are  to  pages. 

Blowers  v.  Southern  Ry.  Co.,  74  S.  C  221,  54  S.  E.  368 33 

Blue  V.  Briggs,  12  Ind.  App.  105,  39  N.  E.  885 219 

Bocock  V.  Pavey,  8  Ohio  St.  270 33 

Bodine  v.  Insurance  Co.,  51  N.  Y.  117,  10  Am.  Rep.  566 36 

Bohart  v.  Oberne,  36  Kan.  284,  13  Pac.  388 143 

Bollman  v.  Loomis,  41  Conn.  581 206 

Bond  V.  Hurd,  31  Mont.  314,  78  Pac.  579 32 

Booker  v.  Booker,  208  111.  529,  70  N.  E.  709 187 

Boothby  v.  Scales,  27  Wis.  636 136 

Borel  V.  Rollins,  30  Cal.  408 70 

Boston  Ice  Co.  v.  Potter,  123  Mass.  28,  25  Am.  Rep.  9 197,  198 

Boston  V.  Simmons,  150  Mass.  461,  23  N.  E.  210 206 

Boswell  V.  Cunningham,  32  Fla.  277,  13  South  354 236 

Botsford  V.  Burr,  2  Johns  (N.  Y.)  404 236 

Bourlier  v.  McCauley,  91  Ky.  135,  15  S.  W.  60 206 

Boutelle  v.  Melendy,  19  N.  H.  196 70 

Bowles  V.  Rice,  107  Va.  51,  57  S.  E.  575 140 

Bowling  Green  Bank  v.  Todd,  52  N.  Y.  489 260 

Bowen  v.  Bowen,  74  Ind.  470 248 

Boyce  v.  Commerce  Bank.  22  Fed.  53 155 

Boyd  V.  Cochrane,  18  Wash.  281,  51  Pac.  383 44 

Boyd  V.  Corbitt,  37  Mich.  52 105 

Boynton  Furnace  Co.  v.  Clark,  42  Minn.  335,  44  N.  W.  121,.  131 

Bozeman  v.  Browning,  31  Ark.  3G4 19 

Bradlee  v,  Boston  Glass  Co.,  16  Pick,  (Mass.)  350 165,  166 

Bradlee  v.  Southern  Coast  Lum.  Co.,  193  Mass.  378,  79  N,  E, 

777 248 

Bradstreet  v,  Everson,  72  Pa.  St.  124,  13  Am.  Rep.  665 243 

Brady  v,  Todd,  9  C.  B.  592 140 

Bragg  V.  Boston,  etc.  Ry.  Corp.,  9  Allen  (Mass. )  54 113 

Brahn  v.  Forge  Co.,  38  N.  J.  Law  74 88 

Brannan  v.  Strauss,  75  111.  234 253 

Brantley  v.  Southern  Life  Ins.  Co.,  53  Ala.  554, ,  121,  122,  127,  151 

Brass  v.  Worth,  40  Barb.  (N.  Y.)  648 81 

Brasswell  v,  American  Ins.  Co.,  75  N.  C.  8 99 

Breed  v.  First  Nat.  Bank,  4  Colo.  481 81 

Brennan  v.  Wilson,  71  N,  Y.  502 26 

Brewster  v,  Hobart,  15  Pick.  (Mass.)  302 32 

Bridgeport  Organ  Co.  v.  Snyder,  147  N.  C.  271,  61  S.  E.  51,,  241 

Briere  v.  Searls,  126  Wis.  347,  105  N.  W.  817 233 

Briggs  V.  Briggs,  46  Vt.  571 246 


270  TABLE  OF  CASES   CITED. 

Keferences  are  to  pages. 

Briggs  V.  Hodgson,  78  Me.  514,  2  Atl.  387 233 

Briggs  V.  Partridge,  64  N.  Y.  357,  21  Am.  Rep.  617 160 

Briggs  V.  Spaulding,  141  U.  S.  132 234 

Briggs  V.  Taylor,  35  Vt.  57 138 

Brinkley  v.  Mann,  2  Cush.  (Mass.)  337,  48  Am.  Dec.  669 162 

Brinkley  v.  Swicegood,  65  N.  C.  626 250 

Briton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713 256 

Britt  V.  Gordon,  132  Iowa  431,  108  N.  W.  319 79 

Britt  V.  Hayes,  21  Ga.  157 251 

Broadstreet  v.  McKamey,  41  Ind.  App.  472,  83  N.  E.  773 116 

Brockway  v,  Allen,  17  Wend.   (N.  Y.)  40 169 

Brockway  v.  Mullin,  46  N.  J.  Law.  448,  50  Am.  Rep.  442. .  130,  138 

Brook  V.  Hook,  6  Ex.  89  (Eng. ) 73 

Brooke  v.  New  York,  etc.  Ry.  Co.,  108  Pa.  St.  529,  1  Atl.  206 

135,  138,  191,  192 

Brookshire  v.  Brookshire,  30  N.  C.  74,  47  Am.  Dec.  341 97 

Brooks  V.  Hassell,  49  L.  T.  569 140 

Brooks  V.  Jameson,  55  Mo.  505 181 

Brooks  V.  New  Durham,  55  N.  H.  559 158 

Brothers  v.  Bank,  84  Wis.  381,  54  N.  W.  786 '. 186 

Broughton  v.  Silloway,  114  Mass.  71,  19  Am.  Rep.  312...  228,  157 

Brown  v.  Arrott,  6  Watts  &  S.  (Pa.)  418 241 

Brown  v.  Bookstaver,  141  111.  461,  31  N.  E.  17 54 

Brown  v.  Tramberger,  110  Ala.  342,  20  South  114 84 

Brown  v.  Bradlee,  156  Mass.  28,  30  N.  E.  85 212,  215 

Brown  v.  Clayton,  12  Ga.  574 257 

Brown  v.  Eno,  48  Neb.  538,  67  N.  W.  434 135 

Brown  v.  Hartford  Ins.  Co.,  117  Mass.  479 21 

Brown  v.  Henry,  172  Mass.  559,  52  N.  E.  1073 79 

Brown  V.  Howard,  14  Johns.  (N.  Y.)  119 229 

Brown  v.  Lalley,  79  Minn.  38,  81  N.  W.  538 147 

Brown  v.  McGran,  14  Pet.  (U.  S..  479 230 

Brown  v.  Pforr,  38  Cal.  550 95 

Brown  v.  Railway  Pass.  Assur.  Co.,  45  Mo.  221 11 

Brown  v.  Staton,  2  Chit.,  353  (Eng.) 157 

Brown  v.  Webster  City,  115  Iowa  511,  83  N.  W.  1070 40.  72 

Brown  v.  Wilson,  45  S.  C.  519.  23  S.  E.  630 79 

Brown  v.  Young,  7  Ky.  Law  Hep.  664 47 

Brov.-ning  v.  McNear,  145  Cal.  272,  78  Pac.  722 134 

Bryan  V.  Brazil,  52  Iowa  350 210 

Bryan  v.  Reynolds,  5  Wis.  200,  68  Am.  Dec.  55 43,  44 


TABLE  OF  CASES  CITED.  271 

i 
References  are  to  pag-es. 

Bryant  v.  Moore,  26  Me.  84,  45  Am.  Dec.  96 134,  149 

Bryce  v.  Brooks,  26  Wend.   (N.  Y.)  374 261 

Bryer  v.  Watson,  16  Me.  261 114 

Bryson  v.  Lucas,  84  N.  C.  680,  37  Am.  Rep.  634 164 

Buck  V.  Albee,  27  Vt.  190 71 

Buckland  v.  Conway,  16  Mass.  396 35,  131 

Buckley  v.  Humason,  50  Minn.  195,  52  N.  W.  385 25 

Buell  V.  Chapin,  99  Mass.  594,  97  Am.  Dec.  58 231 

Bullitt  V.  Musgrave,  3  Gill.  (Md.)  31 131 

Bunker  v.  Miles,  30  Me.  431,  1  Am.  Rep.  632 235 

Burden  v.  Sheridan,  36  Iowa  125,  14  Am.  Rep.  505 236 

Burgen  v.  Lyell,  2  Mich.  102,  55  Am.  Dec.  53 12 

Burkhalter  v.  Perry  &  Brown,  126  Ga.  438,  56  S.  E.  631 170 

Burkhard  v.  Mitchell,  16  Colo.  376,  26  Pac.  657 80 

Burke  V.  Bours,  98  Cal.  171,  32  Pac.  980 25 

Burks  V.  Hubbard,  69  Ala.  379 147 

Burlington,  etc.  Ry.  Co.  v.  Sherwood,  62  Iowa  309,  17  N.  W. 

564 87 

Burnap  v.  Marsh,  13  111.  535 219 

Burnam  v.  Fisher,  25  Vt.  514 201 

Burnham  v.  Holt,  14  N.  H.  367 204 

Burnham  v.  Kidwell,  113  111.  425 16 

Burns  v.  Kelley,  41  Miss.  339 81 

Burns  V.  Lynde,  6  Allen  (Mass.)  305 31,53 

Burr  V.  Howard,  58  Ga.  564 117 

Burt  V.  Lathrop,  52  Mich.  106,  17  N.  W.  716 13 

Burton  v.  Goodspeed,  69  111.  238 155 

Burton  v.  Wilkinson,  18  Vt.  185,  46  Am.  Dec.  145 238 

Bush  V.  Breinig,  113  Pa.  St.  310,  57  Am.  Rep.  469 18 

Bush  V.  Cole,  28  N.  Y.  261,  84  Am.  Dec.  343 157 

Bush  V,  Miller,  13  Barb.  (N.  Y.)  481 131 

Butler  V.  Dorman,  68  Mo.  298,  30  Am.  Rep.  795 147 

Butler  V.  Maples,  9  Wall.  (U.  S.)  766 149 

Butler  V.  Price,  110  Mass.  97 23 

Butler  V.  Winona  Mill  Co.,  28  Minn.  205,  9  N.  W.  697 247 

Butterfield  v.  Beall,  3  Ind.  203 51,  162 

Butts  V.  Phelps,  79  Mo.  302 226,  227 

Byne  v.  Hatcher,  75  Ga.  289 72 

Byrd  v.  Hughes,  84  111.  174,  25  Am.  Rep.  442 .• 48 

Byrnes  v.  Clark,  57  Wis.  13.  14  N.  W.  815 240 

3yrne  v.  Packing  Co.,  137  Mass.  313 135 


272  TABLE  OF  CASES  CITED. 

References  are  to  pagea. 

C. 

Cabot  V.  Shaw,  148  Mass.  459,  20  N.  E.  99 , .  218 

Cadell  V.  Allen,  99  N.  C.  542,  6  S.  E.  399 51,  160 

Calais  Steamboat  Co.  v.  Van  Pelt,  2  Black  (U.  S.)  372 204 

Caldwell  v.  Walters,  18  Pa.  St.  79,  55  Am.  Dec.  592 19 

Calboon  v.  Buhre,  75  (N  J.  Law)  439,  67  Atl.  1068 153 

Calhoun  v.  Millard,  121  N.  Y.  69,  24  N.  E.  27 77 

Calif.  Bank  v.  Western  Union  Tel,  Co.,  52  Cal.  280 32 

Callanan  v.  Van  Vleck,  36  Barb.  (N.  Y.)  324 98 

Calmon  v.  Saraille,  142  Cal.  638,  76  Pac.  486 24 

Camden  Safe  Deposit  Co.  v.  Abbott,  44  N.  J.  Law  257 123 

Cameron  v.  Lewis,  56  Miss.  76 237 

Cameron  v.  Ward,  22  Ga.  168 23 

Campau  v.  Konan,  39  Mich.  362 185 

Campbell  v.  Hastings,  29  Ark.  512 121,  153 

Campbell  v.  Hough,  (N.  J.  Eq.) ,  68  Atl.  759 114 

Campbell  v.  Roe,  32  Neb.  345,  49  N.  W.  452 241 

Cannon  Coal  Co.  v.  Taggart,  1  Colo.  App.  60.  27  Pac.  238 101 

Capron  v.  Strout,  11  Nev.  304 255 

Carley  v.  Jenkins,  46  Vt.  721 12 

Carpenter  v.  Blake,  50  N.  Y.  696 233 

Carpenter  v.  Farnsworth,  106  Mass.  561,  8  Am.  Rep.  360....  168 

Carroll  v.  State,  63  Md.  551,  3  Atl.  29 194 

Carson  v.  Quinn,  127  Mo.  App.  525,  105  S.  W.  1088 221 

Carson  v.  Smith,  5  Minn.  78 14S 

Carter  v.  Railway  Co.,  Ill  Ga.  38,  36  S.  E.  308 222 

Cartmell  V.  Allard,  7  Bush.  (Ky)  482 241 

Casco  Bank  v.  Keene,  53  Mo.  103 74 

Casco  Nat.  Bank  v.  Clark,  139  N.  Y.  307,  34  N.  E.  908 167,  213 

Case  V.  Carroll,  35  N.  Y.  385 237 

Case  V.  Citizens  Bank,  100  U.  S.  446 9,  154,  155 

Case  V.  Hammond  Parking  Co.,  105  Mo.  App.  1C8,  79  S.  W. 

732 84,  150 

Case  V.  Jennings,  17  Tex.  601 102 

Case  Mfg.  Co.  v.  Saxman,  138  U.  S.  431,  11  Sup.  Ct.  360 169 

Cason  V.  Cason,  116  Tenn.  173,  93  S.  W.  89 84 

Cassaday  v.  Seeley,  69  Iowa  509,  29  N.  W.  432 249 

Casslday  v.  McKenze,  4  Watts  &  Serg.   (Pa.)   282 103 

Castle  V.  Noyes,  14  N.  Y.  329 258 

Castner  v.  Rifhardson,  18  Colo.  ■{'.)(',,  '.',:',  I'ac.  lo;! 55 


TABLE  OF  CASES   CITED,  273 

References  are  to  pages. 

Castner  y.  Rinne,  31  C!olo.  256,  72  Pac.  1052 13 

Caswell  V.  Parker,  96  Me.  39,  51  Atl.  38 22 

Gate  V.  Blodgett,  70  N.  H.  316,  48  Atl.  281 190 

Central  Trust  Co.  v.  Bridges,  6  C.  C.  A.  539,  57  Fed.  753 56 

Central  Nat.  Bank  v.  Ins.  Co.,  104  U.  S.  54 205 

Chadwick  v.  Knox,  31  N:  H.  226,  64  Am.  Dec.  329 246 

Chaffee  v.  Baptist  Convention,  10  Paige  (N.  Y.)  85 29 

Chaison  v.  Beauchamp,  12  Tex.  Civ.  App.  109,  34  S.  W.  303. .  141 

Chambers  v.  Seay,  73  Ala.  372 250,  252,  257 

Chandler  v.  Belden,  18  Johns.  (N.  Y.)  157 261 

Chandler  v.  Coe,  54  N.  H.  561 172 

Chapman  v.  Limerick,  56  Me.  390 30 

Chapman  v.  McCrea,  63  Ind.  360 231 

Chapman  v.  Twichell,  37  Mo.  59,  58  Am.  Dec.  773 179 

Chappell  V.  McKnight,  108  111.  570 55 

Chase  v.  Baskerville,  93  Minn.  402,  101  N.  W.  950 228 

Chenault  v.  Quisenberry,   (Ky),  57  S.  W.  234 97 

Cheney  v.  Goodwin,  88  Me.  563,  34  Atl.  420 13 

Cheuvront  v.  Horner,  62  W.  Va.  476,  59  S.  E.  964 238 

Chicago,  etc.  Ry.  Co.  v.  Bayfield,  37  Mich.  205 253 

Chippewa  Valley  Ry.  Co.  v.  Chicago,  etc.  Ry.  Co.,  75  Wis.  224 

44  N.  W.  17 44 

Chouteau  v.  Allen,  70  Mo.  290 186 

Chouteau  v.  Goddins,  39  Mo.  229,  90  Am.  Dec.  462 12 

Cincinnati  etc.  Ry,  Co.  v.  Davis,  126  Ind.  99,  25  N.  E.  878 58 

Citizens  Bank  v  Howell,  8  Md.  530,  63  Am.  Dec.  714 39 

Citizens  etc.  Assn.  v.  Friedley,  123  Ind.  143,  23  N.  E.  1075,.  232 

City  Bank  v.  Perkins,  29  N.  Y.  554,  86  Am.  Dec.  332 155 

City  of  Providence  v.  Miller,  11  R.  I.  272,  23  Am,  Rep.  453. ,  215 

Clafin  V.  Lenheim,  66  N.  Y.  301 98 

Clafiin  v.  Continental  Jersey  Works,  85  Ga.  27,  11  S.  E.  721 

, 120,  125 

Clark  V.  Courtney,  5  Pet.  (U.  S.)  319 162 

Clark  V.  Dillman,  108  Mich.  625,  66  N.  W.  570 61,  112,  119 

Clark  V.  Graham,  19  U.  S.  (6  Wheat)  577 51 

Clark  V.  Hyatt,  118  N.  Y.  563,  23  N.  E .  891 80 

Clark  V.  Jones,  16  Lea.  (Tenn.)  351 25S 

Clark  T,  Moody,  17  Mass.  145 241 

Clark  V.  Smith,  88  111.  298 147 

Clarke  Nat.  Bank  v.  Bank,  52  Barb.  (N.  Y,)  592 155 

Claypool  V,  Gish,  108  Ind.  424,  9  N.  E.  382 242 

18 


274  TABLE   OP  CASES   CITED. 

References  are  to  pages. 

Clement  v.  Young-Shea  Amus.  Co.,  70  N.  J.  Eq.  G77,  67  Atl.  82  85 

Clements  v.  Macheboeuf ,  92  U.  S.  418 93 

Cleveland  C.  C.  &  St.  L.  Ry.  Co.  v.  Moore,  170  Ind.  328,  82  N. 

E.  52 140 

Clippinger  v.  Hepbaugh,  5  Watts  &  Serg.   (Pa.)  315,  40  Am. 

Dec.    519 43 

Clough  V.  Clough,  73  Me.  487,  20  Am.  Rep.  386 52 

Cobb  V.  Hall,  49  Iowa  366 62,  116 

Cobb  V.  Judge,  43  Mich.  289,  5  N.  W.  309 23 

Cobb  V.  Knapp,  71  N.  Y.  348,  27  Am.  Rep.  51 173,  211 

Coburn  v.  Lodge,  71  Iowa  581,  32  N.  W.  513 214 

Cockrlll  V.  Kirkpatrick,  9  Mo.  697 242 

Coffin  V.  Gephart,  18  Iowa  256 87 

Coffin  V.  Landis,  46  Pa.  St.  426 96 

Coker  v.  Roper,  125  Mass.  577 226 

Colbert  v.  Shephard,  89  Va.  401,  16  S.  E.  246 235 

Colburn  v.  Phillips,  13  Gray  (Mass.)  64 197,  222 

Cole  V.  O'Brien,  34  Neb.  68,  51  N.  W.  316 213 

Coleman  v.  Beach,  97  N.  Y.  545 29 

Collier  v.  Waugh,  64  Ind.  456 47 

Collins  V.  Buck.  63  Me.  459 260 

Collins  V.  Hopkins,  7  Iowa  463 104 

Collins  V.  Sullivan,  135  Mass.  461 236 

Collins  V.  Tillou,  26  Conn.  368,  68  Am.  Dec.  398 238 

Collins  V.  Toole  &  Crews,  3  Ga.  App.  238,  59  S.  E.  727 116 

Columbia  Mill  Co.  v.  Bank,  52  Minn.  224,  53  N.  W.  1061     59,  64,  66 

Columbus  Show  Case  Co.  v.  Brinson,  128  Ga.  487,  57  S.  E.  871  139 

Colusa  Co.  V.  Welch,  122  Cal.  428,  55  Pac.  243 42 

Colyar  V.  Taylor,  1  Cold.  (Tenn.)  372 233 

Combes'  Case,  9  Coke,  75   29 

Comley  v.  Dazian,  114  N.  Y.  161,  21  N.  E.  135 96 

Commercial  Bank  v.  French,  21  Pick   (Mass.)   486,  32  Am. 

Dec.  280 171,  213,  214 

Commercial  etc..  Bank  v.  Jones,  18  Tex.  811 37,  75 

Commercial  Bank  v.  Martin,  1  La.  Ann.  344,  45  Am.  Dec.  87  35 

Commercial  Bank  v.  Morton,  1  Hill  (N.  Y.)  501 33,  34 

Com.  V.  Briant,  142  Mass.  463,  8  N.  E.  338 193 

Com.  V.  Commissioners,  9  Watts  &  S.   (Pa.)  470 26 

Com.  V.  Gray,  150  Mass.  327,  23  N.  E.  47 194 

Com.  V.  Harnden,   19   Pick.    (Mass.)    482 157 

Com.  V.  Hill,  11  Mass.  135 193 


T-VBLE  OF  CASES   CITED.  275 

References  are  to  pages. 

Com.  V.  Joslin,  158  Mass.  482,  33  N.  E.  G53 194 

Com.  V.  Kelly,  140  Mass.  441,  5  N.  E.  834 194 

Com.  V.  Morgan,  107  Mass.  199 194 

Com.  V.  Nichols,  10  Mete.  (Mass.)   259,  43  Am.  Dec.  432 

40,  73,  193,  194 

Com.  V.  Park,  1  Gray  (Mass.)  553 194 

Com.  V.  Putnam,  4  Gray   (Mass.)   16 193 

Condit  V.  Bakewell,  22  N.  J.  Eq.  481 24 

Conkey  v.  Bond,  36  N.  Y.  427 235 

Conlan  v.  Grace,  36  Minn.  276,  30  N.  W.  880 73 

Connelly  Exr's  v.  Beckett,  32  Ky.  Law  Rep.  356,  105  S.  W.  446  185 

Conner  v.  Canter,  15  Ind.  App.  690,  44  N.  E.  656 46 

Connett  v.  Chicago,  114  111.  233 158 

Connor  v.  Parker,  114  Mass.  331 32 

Conro  V.  Port  Henry  Iron  Co.,  12  Barb.  (N.  Y.)  127 88 

Constant  v.  University,  111  N.  Y.  604,  19  N.  E.  631 186 

Continental  Tob.  Co.  v.  Campbell,  25  Ky.  Law.  Rep.  569,  76 

S.  W.   125 117 

Converse  v.  Blumrick,  14  Mich.  109,  90  Am.  Dec.  230 179 

Cook  V.  Eshelby,  12  App.  Cas.  271  (Eng.) 200 

Cook  V.  Insurance  Co.,  7  Daly  (N.  Y.)  555 34 

Cook  V.  Tullis,  18  Wall.   (U.  S.)  332 69,  77,  87 

Cooke  V.  Bank,  52  N.  Y.  96,  11  Am.  Rep.  667 154 

Cooley  V.  Betts,  24  Wend.  (N.  Y.)  203 242 

Cooley  V.  O'Connor,  12  Wall.  (U.  S.)  391 27 

Cooley  V.  Perrine,  41  N.  J.  Law  322 6 

Coombs  V.  Scott,  12  Allen  (Mass.)   493 85 

Coons  V.  Renick,  11  Tex.  134,  60  Am.  Dec.  230 12 

Cooper  V.  Schwartz,  40  Wis.  54 118 

Copeland  v.  Ins.  Co.,  6  Pick.  (Mass.)  198 26,  97,  235 

Corbett  v.  Underwood,  83  111.  324,  25  Am.  Rep.  392 132 

Costigen  v.  Railway  Co.,  2  Denio.  (N.  Y.)   609,  43  Am.  Dec. 

758     251 

Couch  V.  Ingersoll,  2  Pick.  (Mass.)  292 160 

Coursolle  v.  Weyerhauser,  69  Minn.  328,  72  N.  W.  697 21 

Coventry  v.  Barton,  17  Johns.  (N.  Y.)  142,  8  Am.  Dec.  376. . .  258 

Covin  V.  Hill,  4  Denio  (N.  Y.)  323 202 

Cowan  V.  Curran,  216  111.  598,  75  N.  E.  322 89,  198 

Cowan  V.  Sargeant  Mfg.  Co.,  141  Mich.  87,  104  N.  W.  377...  85 

Cowell  V.  Daggett,  97  Mass.  434 62 

Cowles  V.  Rochester  Box  Co.,  179  N.  Y.  87,  71  N.  E.  468 47 


276  TABLE  OF  CASES  CITED. 

References  are  to  pages. 

Cragin  v.  Lovell,  109  U.  S.  194,  3  Sup.  Ct.  132 164 

Craighead  v.  Peterson,  72  N.  Y.  279,  28  Am.  Rep.  150 

84,  122,  123,  128.  152 

Grain  v.  Jacksonville  Nat.  Bank,  114  111.  516,  2  N.  E.  486 115 

Cranch  v.  White,  1  Bing.   (N.  C.)  414 219 

Crane  v.  Gruenwald,  120  N.  Y.  274,  24  N.  E.  456 64,  65,  151 

Crashley  v.  Press  Pub.  Co.,  179  N.  Y.  27,  71  NE  258 18 

Crawford  v.  Redus,  54  Miss.  700 110 

Creson  v.  Ward,  66  Ark.  209,  49  S.  W.  827 72 

Critchfield  v.  Burmudez  Asphalt  Co.,  174  111.  466,  51  N.  E.  552       41 

Crisup  V.  Grosslight.  79  Mich.  380,  44  N  W.  G21 47 

Crockett  Bros.  v.  Sibley,  3  Ga.  App.  554,  60  S.  E.  326 72 

Crosby  v.  Hill,  39  Ohio  St.  100 200 

Croy  V.  Busenback,  72  Ind.  48 52 

Cruzan  v.  Smith,  41  Ind.  288 139,  128 

Cullinan  v.  Bowker,  180  N.  Y.  93,  72  N.  E.  911 32 

Cummings  V.  Sargent,  9  Mete.  (Mass.)  172 153 

Cummins  v.  Heald,  24  Kan.  600,  36  Am.  Rep.  264 243 

Cupples  V.  Whelan,  61  Mo.  583 2 

Curran  v.  Galen,  152  N.  Y.  33,  46  N.  E.  297 221 

Curry  v.  King,  6  Gal.  App.  568,  92  Pac.  662 25,  235 

Curtis  V.  Barclay,  7  D.  &  R.  539  (Eng.)  5  B.  &  C.  141 131 

Cutter  V.  Demmon,  111  Mass.  474 239 


Dagget  V.  Champlin  Mfg.  Co.,  71  Vt.  270,  45  Atl.  755 113 

Daily  Tel.  Co.  v.  McLaughlin,  73  Law  J.  P.  Co.  95  (Eng.) ..  18 

Dalby  v.  Stearns,  132  Mass.  230 227 

Daley  v.  Islein,  218  Pa.  St.  515,  67  Atl.  837 84 

Daly  V.  Bank,  56  Mo.  94 243 

Damron  v.  Ratlift",  30  Ky.  Law  Rep.  67,  97  S.  W.  401 19 

Danby  v.  Coutts,  L.  R  29  Ch.  Div.  500 93 

Daniel  v.  Atlantic  Coast  Line  Ry.,  136  N.  C.  517,  48  S.  E.  816  129 

Danzeiger  v.  Pittsfield  Sho^  Co.,  204  111.  145,  68  N.  E.  534 158 

Darling  V.  Stanwood,  14  Allen   (Mass.)   504 36 

Darr  v.  Diirr,  59  Iowa  81,  12  N.  V/.  705 102 

Davies  v.  Lyons,  36  Minn.  427,  31  N.  W.  688 149 

Davis  V.  Bargar,    57    Ind.    54 229 

Davis  V.  Cook,  14  Nev.  265 8 

Davis  v.  Hamlin.  lOS  ill.  ?,9.  48  Am.  Rop.  541 237 


TABLE  OF  CASES  CITED.  277 

References  are  to  pages. 

Davis  V.  Henderson,  25  Miss.  549,  59  Am.  Dec.  229 170 

Davis  V.  Kobe,  36  Minn.  214,  30  N.  W.  662 230 

Davis  V.  King,  66  Conn.  465,  34  Atl.  107 38 

Davis  V.  Lane,  10  N.  H.  156 18,  107,  108 

Davis  V.  Lee,  26  Miss.  505 152 

Davis  V.  Maxwell,  12  Mete.   (Mass.)   286 255 

Davis  V.  Matthews,  8  S.  D.  300,  66  N.  W.  456 35 

Davis  V.  Talbot,  137  Ind.  235,  36  N.  E.  1098 6,  85 

Davis  V.  Trachsler,  3  Cal.  App.  554,  86  Pac.  610 141 

Davis  V.  Waterman,  10  Vt.  526,  33  Am.  Dec.  216 131,  151 

Davison  v.  Holden,  55  Conn.  103,  10  Atl.  515 13,  14 

Davol  V.  Quinby,  11  Allen  (Mass.)  208 97 

Dawson  v.  Lawley,  4  Esp.  65   (Eng.) 131 

Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45 

137,  138,  142,  147,  156 

Dayton  v.  Warne,  43  N.  J.  Law  659 161,  213 

Dazey  v.  Roleau,  111  111.  App.  367 226 

Deacon  v.  Greenfield,  141  Pa.  St.  467,  21  Atl.  650 78 

Deakin  v.  Underwood,  37  Minn.  98,  33  N.  W.  318 12,  24 

Dean  v.  Brock,  11  Ind.  App.  507,  38  N.  E.  829 220 

Dean  v.  King,  22  Ohio  St.  118 191 

Dean  v.  Shreve,  155  111.  650,  40  N.  E.  294 63 

Deane  v.  Gray  Bros.  Stone  Co.,  109  Cal.  433,  42  Pac.  443 SI 

Decell  V.  Hazelhurst  Oil  Co.,  83  Miss.  346,  35  South.  761 238 

Decker  v.  Fredrick,  47  N.  J.  Law  469 .'. .     .133 

Deering  &  Co.  v.  Bank,  81  Iowa  222.  46  N.  W.  1117 80 

Deering  v.  Thom,  29  Minn.  120,  12  N.  W.  350 133,  212 

DeHart  v.  DeHart,  70  N.  J.  Eq.  774,  67  Atl.  1074 231 

Delafield  v.  Smith,  101  Wis.  664,  78  N.  W.  170 7 

Delafield  v.  State  of  Illinois,  26  Wend.  (N.  Y.)  192 125 

Delany  v.  Rocherau,  34  La.  Ann.  1123,  44  Am.  Rep.  456..  219,  220 

Dempsey  v.  Chambers,  154  Mass.  330,  28  N.  E.  279 187,  189 

Denny  v.  Manhattan  Co.,  2  Denio.  (N.  Y.)  115 220 

Denny  v.  Wheelwright,  60  Miss.  733 257 

Derby  v.  Johnson,  21  Vt.  17 250 

Derocher  v.  Continental  Mills,  58  Me.  217,  4  Am.  Rep.  286...       22 

DeRutte  v.  Muldrow,  16  Cal.  505 127 

Desmond  v.  Stebbin,  140  Mass.  339,  5  N.  E.  150 249 

Despatch  Line  v.  Mfg.  Co.,  12  N.  H.  205,  37  Am.  Dec.  203 153 

DeTurck  v.  Matz,  180  Pa.  St.  347,  36  Atl.  861 5 

Devall  V.  Burbridge,  4  Watts  &  S.  305 240 


278  TABLE  OF  CASES   CITED. 

References  are  to  pages. 

Devoss  V.  Gray,  22  Ohio  St.  169 15 

Dewesse  v.  Muff,  57  Neb.  17,  77  N.  W.  361 103 

DeWitt  V.  Walton,  5  Selden  (9  N.  Y.)  570 166,  213 

Dexter  v.  Barge,  76  Minn.  216,  78  N.  W.  1111 117 

Dexter  v.  Hall,  15  Wall.    (U.  S.)    9 10,  16,  76 

Diamond  v.  Manheim,  61  Minn.  178,  63  N.  W.  495 2 

Dick's  Exr's  v.  Paige,  17  Mo.  234 103 

Dickinson  v.  Bank,  129  Mass.  279,  37  Am.  Rep.  351 108 

Dickinson  Co.  v.  Mississippi  "Valley  Ins.  Co.,  41  Iowa  286..     114 

Dickson  v.  Morgan,  7  La.  Ann.  490 30 

Diefenbacli  v.  Stark,  56  Wis.  462,  14  N.  W.  621 255 

Dieringer  v.  Meyer,  42  Wis.  311,  24  Am.  Dec.  415 253 

Dillman  v.  Hastings,  144  U.  S.  136 238 

Dingley  v.  McDonald,  124  Colo.  682,  57  Pac.  574 89 

Disbrow  v.  Secor,  58  Conn.  35,  18  Atl.  981 235 

Distilled  Spirits,  the,  11  Wall.   (U.  S.)  356 185,  186 

Doan  V.  Duncan,  17  111.  272 117 

Dodd  V.  Wakeman,  36  N.  J.  Eq.  484 239 

Dodge  V.  Hatchett,  118  Ga.  883,  45  S.  E.  067 240 

Dodge  V.  Hopkins,  14  Wis.  630 54,  89,  90 

Dodge  V.  McDonnell,    14   Wis.    553 134 

Dodge  V.  Perkins,  9  Pick.   (Mass.)   368 242 

Donnan  v.  Adams,  30  Tex.  Civ.  App.  615,  71  S.  W.  580 123 

Dood  V.  Farlow,  11  Allen  (Mass.)  426,  87  Am.  Dec.  726 156 

Dorchester  Bank  v.  Bank,  1  C\ish.  (Mass.)  177 35,  39,  151,  243. 

Dorrah  v.  Hill,  73.  Miss.  787,  19  South.  901 24 

Doubleday  v.  Kress,  50  N.  Y.  410,  10  Am.  Rep.  502 150 

Dougherty  v.  Whitehead,   31  Mo.   255 246 

Douglass  V.  Folsom,  21  Nev.  441,  33  Pac.  660 7 

Douthart  v.  Congdon,  197  111.  349,  64  N.  E.  348 7 

Dowden  v.  Cryder,  55  N.  J.  Law  329,  26  Atl.  941 139 

Downing  v.  Rugar,  21  Wend.  (N.  Y.)  178,  34  Am.  Dec.  223..       27 

Drew  V.  Nunn,  4  Q.  B.  Div.  661  (Eng.) 108 

Drumright  v.  Philpot,  16  Ga.  424,  60  Am,  Dec.  738 124 

Drummond  v.  Humphreys,  39  Me.  347 258,  250 

Driimmoud  v.  Wood,  2  Caines  (N.  Y.)  310 229 

Drury  v.  Foster,  2  Wall.   (U.  S.)   24 6S 

Dubois  V.  Perkins,  21  Ore.  189,  27  Pac.  1044 197,  199 

Duguld  V.  Edwards,  50  Barb.  (N.  Y.)  200 7 

Duke  V.  Asbeo,  33  N.  C.  112 46 

Duluth  Nat.  Bank  y.  Ins.  Co.,  85  Tonn.  76,  4  Am.  St.  Rep.  744      37 


TABIiE  OP  CASES  CITED,  279 

References  are  to  pages. 

Duncan  v.  Baker,  21  Kan.  99 256 

Duncan  v.  Niles,  32  111.  532 216 

Dung  V.  Parker,  52  N.  Y.  494 216 

Dunham  v.  Hastings  Pav.  Co.,  57  App.  Div.  426,  68  N.  Y. 

Supp.    221 44 

Dunn  V.  Hartford,  etc.,  Ry.  Co.,  43  Conn.  434 40,  72,  118 

Dunwoody  v.  Saunders,  50  Fla.  202,  39  South.  965 129 

Durant  Lbr.  Co.  v.  Sinclair  Lbr.  Co.,  2  Ga.  App.  209,  58  S.  E. 

485     199 

Durgin  v.  Somers,  177  Mass.  55 12 

Duryea  v.  Vosberg,  138  N.  Y.  621,  33  N.  E.  932 239 

Dutch  V.  Boyd,  81  Ind.  146 214 

Dutcher  v.  Beckwith,  45  111.  460,  92  Am.  Dec.  232 62,  116 

Duzan  v.  Meserve,  24  Ore.  523,  34  Pac.  548 118 

Dyer  V.  Duffy,  39  W.  Va.  148,  19  S.  E.  540 127,  148 

E. 

Eagle  Bank  v.  Smith,  5  Conn.  71,  13  Am.  Dec.  37 51,  60 

Eagle  Iron  Co.  v.  Baugh,  147  Ala.  613,  41  South.  663 113 

Bast  Haddam  Bank  v.  Scovil,  12  Conn.  303 243 

Eastland  v.  Maney,  36  Tex.  Civ.  App.  147,  81  S.  W.  574 38 

Eaton  V.  Welton,  32  N.  H.  352 241 

Eaton  V.  Granite  State  Assn.,  89  Me.  58,  35  Atl.  1015 112 

Eckart  v.  Roehm,  43  Minn.  27,  45  N.  W.  443 149 

Eddy  V.  Livingston,  35  Mo.  487,  88  Am.  Dec.  122 233,  234 

Edgerton  v.  Thomas,  9  N.  Y.  40 23 

Elwards  v.  Dooley,  120  N.  Y.  540,  24  N.  E.  827 112 

Edwards  v.  Randle,  63  Ark.  318,  38  S.  W.  343 45 

Eggleston  v.  Boardman,  37  Mich.  14 24,  198,  248 

Eggleston  v.  Wagner,  46  Mich.  610,  10  N.  W.  37 52 

Ehrmanntraut  v.  Robinson,  52  Minn.  333,  54  N.  W.  188 79,  85 

Eichbaum  v.  Irons,  6  Watts  &  S.  (Pa.)  67,  40  Am.  Dec.  540..       15 

Eldridge  v.  Holway,  18  111.  445 33 

Elias  V.  Enterprise  B.  &  L.  Assn.,  46  N.  C.  188,  24  S.  E.  103. .       16 
Elizabethtown  M.  &  C.  Co.  v.  Elizabethtown  Mlg.  Co.,  13  Ky. 

Law.  Rep.  96 86 

Elkhart  Co.  Lodge  v.  Crary,  98  Ind.  238,  49  Am.  Rep.  746. .   41,  45 

Elkin  V.  McCracken,  32  Leg.  Int.  405 18 

Elkins  V.  Railway  Co.,  19  N.  H.  337,  51  Am.  Dec.  184 197 

Elliot  V.  Bodiue,  59  N.  J.  Law  567,  36  Atl.  103S    173 


280  TABLE  OP  CASES  CITED. 

References  are  to  pages. 

Elliot  V.  Bradley,  23  Vt.  217 260 

Elliot  V.  Brady,  192  N.  Y.  221,  85  N.  E.  69 196 

Elliot  V.  Swartout,  10  Pet.  (U.  S.)  137 21S 

Elliot  V.  Stocks,  67  Ala.  336 51 

Ellis  V.  McNaugliton,  76  Mich.  237,  42  N.  W.  1113 221 

Eisner  v.  State,  30  Tex.  524 60 

Elwell  V.  Shaw,  16  Mass.  42,  8  Am.  Dec.  126 161,  213 

Ely  V.  Hanford,  65  III.  267 239 

Emmerson  v.  Prov.  Hat  Co.,  12  Mass.  237,  7  Am.  Dec.  66 

33,   36,  156 

Enright  v.  Beaumond,  68  Vt.  249,  35  Atl.  57 97 

Equitable  Life  Assur.  Soc.  v.  Poe,  53  Md.  28 127 

Erie,  etc.,  Ry.  Co.  v.  Smith,  125  Pa.  St.  259 182 

Eufala  Gro.  Co.  v.  Bank,  110  Ala.  408,  24  South.  389 218 

Euneau  v.  Rieger,  105  Mo.  659,  16  S.  W.  854 235 

Evans  v.  Collier,  80  Ga.  130,  4  S.  E.  264 41 

Evans  v.  Teavne,  16  Ala.  689,  50  Am.  Dec.  197 100 

Evans  v.  Potter,  2  Gall.  (U.  S.)  2 155 

Evit  V.  Bancroft,  22  Ohio  St.  172 223 

Exchange  Bank  v.  Lewis  County,  28  W.  Va.  273 166 

Exchange  Bank  v.  Thower,  118  Ga.  433,  45  S.  E.  316 151 

Exchange  Nat.  Bank  v.  Bank,  112  U.  S.  276 37,  38,  39,  243 

Exum  V.  Brister,  35  Miss.  391 72 

P. 

Fairbanks  V.  Snow,  145  Mass.  153,13  N.  E.  596 20 

Fairchild  v.  Cunningham,  84  Minn.  521,  88  N.  W.  15 252 

Fairchild  v.  King,  102  Cal.  320,  36  Pac.  649 32 

Fairfield  Sav.  Bank  v.  Chase,  72  Me.  226.  39  Am.  Rep.  319...  186 

Falksen  v.  Falls  City  Bank,  71  Neb.  29,  98  N.  W.  42.-> 230 

Farmers  Co-Op.  Trust  Co.  v.  Floyd,  47  Ohio  St.  525,  26  N. 

E.    110 217 

Farmers  etc.,  Bank  v.  Butchers,  etc..  Bank,  16  N.  Y.  125.. 

5,  50,  56,  59 

Fanners,  etc.,  Bank  v.  Logan,  74  N.  Y.  508 262 

Farmers  Loan  &  Trust  Co.  v.  Wilson,  139  N.  Y.  284,  34  N.  E. 

784   101,  103 

Farmers  &  Mechanics  Bank  v.  King,  57  Pa.  St.  202,  98  Am. 

Dec.    215 205 

Farmers  &  Mechanics  Bank  v.  Colby,  64  Cal.  352 167 


T-VBLE  OF  CASES  CITED.  281 

References  are  to  pages. 

Farrar  v.  Besey,  24  Vt.  89 19 

Farwell  v.  Railroad  Corp.,  4  Mete.   (Mass.)  49,  38  Am.  Dec. 

339     187 

Fatman  v.  Leet,  41  Ind.  133 135 

Fay  V.  Burdett,  81  Ind.  433,  42  Am.  Rep.  142 17 

Fay  V.  Richmond,  43  Vt.  25 50,  55 

Fearnley  v.  DeMainville,  5  Colo.  App.  441,  39  Pac.  73 .  45,  47 

Feiner  v.  Boynton,  73  N.  J.  Law  136,  62  Atl.  420 63 

Fellows  V.  Commissioners,  36  Barb.   (N.  Y.)   655 75 

Fellows  V.  Hartford,  etc.,  Ry.  Co.,  38  Conn.  197 99 

Fellows  V.  Northrup,  39  N.  H.  117 33 

Felt  V.  School  District,  24  Vt.  297 232 

Feltus  V.  Swan,  62  Miss.  415 220 

Ferguson  v.  Hamilton,  35  Barb.  (N.  Y.)  427 178 

Ferguson  v.  Houston,  etc.,  Ry.  Co.,  73  Tex.  344,  11  S.  W.  347  21 

Ferguson  v.  Morris,  67  Ala.  389 11 

Ferry  v.  Laible,  31  N.  J.  Eq.  506 148 

Fetrow  v.  Wiseman,  40  Ind.  148 70 

Field  V.  Stagg,  52  Mo.  534,  14  Am.  Rep.  435 53 

Fifth  Ave.  Bank  v.  Ry.  Co.,  137  N.  Y.  231,  33  N.  E.  378 192 

Fifth  Nat.  Bank  v.  Hyde  Park,  101  111.  595,  40  Am.  Rep.  282  205 

Finch  V.  Causey,  107  Va.  124,  57  S.  E.  562 141,  191 

Findlay  v.  Pertz,  13  C  C.  A.  559,  66  Fed.  427 206 

Finn  v.  Railroad  Corp.,  112  Mass.  524,  17  Am.  Rep.  128 222 

Finnegan  v.  Lucy,  157  Mass.  439,  32  N.  E.  656 11,  30 

Fintel  v.  Cook,  88  Wis.  485,  60  N.  W.  788 118 

First  Nat.  Bank  v.  Dutcher,  128  Iowa  413,  104  N.  W.  497. . .  129 
First  Nat.  Bank  v.  Fourth  Nat.  Bank,  77  N.  Y.  320,  33  Am. 

Rep.    618 231 

First  Nat.  Bank  v.  Free,  67  Iowa  11,  24  N.  W.  566 67 

First  Nat.  Bank  v.  Hall,  8  Mont.  341,  20  Pac.  638 97,  142 

First  Nat.  Bank  v.  Kilbourne,  127  111.  573,  20  N.  E.  681 241 

First  Nat.  Bank  v.  Linn  Co.  Nat.  Bank,  30  Ore.  296,  47  Pac. 

614     • 2 

First  Nat.  Bank  v.  Loyhed,  28  Minn.  396,  10  N.  W.  421 163 

First  Nat.  Bank  v.  Nelson,  38  Ga.  391 6 

First.  Nat.  Bank  v.  Mt.  Tabor,  52  Vt.  87,  36  Am.  Rep.  734..  27 

First  Nat.  Bank  v.  Sprague,  34  Neb.  318,  51  N.  W.  846 39 

Fish  V.  Kelly,  17  C.  B.  (N.  S.)  194  (Eng.) 234 

Fishbaugh  v.  Spunagle,  118  Iowa  337,  92  N.  W.  58 5,  117,  139 

Fisher  v.  Bush,  133  Ind.  315,  32  N.  E.  924 235 


282  TABLE  OF  CASES  CITED. 

References  are  to  pages. 

Fisher  v.  So.  Loan  &  Trust  Co.,  138  N.  C  90,  50  S.  E.  592. .. .  105 

Fisher  v.  Stevens,  16  111.  397 117 

Fisk  V.  Holmes,  41  Me.  441 87 

Fiske  V.  Eldridge,  12  Gray  ( Mass. )  474 165,  213 

Fitzgerald  Oil  Co.  v.  Farmers  Supply  Co.,  3  Ga.  App.  212,  59 

S.  E.  713 119 

Fitzhugh  V.  Wilcox,  12  Barb.  (N.  Y.)  235 16 

Flaherty  v.  O'Connor,  24  R.  I.  587,  54  Atl.  376 95 

Flannagan  v.  Brown,  70  Cal.  254,  11  Pac.  706 101 

Fleckner  v.  Bank,  8  Wheat.  (U.  S.)  338 69,  154 

Flemyng  v.  Hector,  2  M.  &  W.  172 14 

Flesh  V.  Lindsay,  115  Mo.  1,  21  S.  W.  907 2 

Fletcher  v.  Railway  Co.,  109  Mich.  363,  67  N.  W.  330 181 

Florida  etc.  Ry.  Co.  v.  Varnedoe,  81  Ga.  175,  7  S.  E.  129. .   60,  118 

Fluker  v.  Ry.  Co.,  81  Ga.  461,  8  S  E.  529 207 

Flynn  v.  Butler,  189  Mass.  377,  75  N.  E.  730 97 

Fog  V.  Railway,  148  Mass.  513,  20  N.  E.  109 189 

Fogg  V.  Pew,  10  Gray  (Mass.)  409,  71  Am.  Dec.  662 179 

Forbes  v.  Hagman,  75  Va.  168 82 

Forlaw  v.  Augusta  Naval  Stores  Co.,  124  Ga.  261,  52  S.  E.  898  239 

Forrestier  v.  Boardman,  1  Story  (U.  S.)  43 240 

Forth  Smith  Oil  Co.  v.  Slover,  58  Ark.  168,  24  S.  W.  106 182 

Foss-Schneider  Brw.  Co.  v.  McLaughlin,  5  Ind.  App.  415,  31 

N.  E.   S28 2 

Foste  V.  Standard  Ins.  Co.,  34  Ore.  125,  54  Pac.  811 113 

Foster  v.  Fuller,  6  Mass.  58 165 

Foster  v.  Graham,  166  Mass.  202,  44  N.  E.  129 197 

Foster  v.  Preston,  8  Cow.   (N.  Y.)   198 227 

Foster  v.  Smith,  2  Cold.  (Tenn.)  474,  88  Am.  Dec.  604 229 

Foster  v.  Wiley,  27  Mich.  245,  15  Am.  Rep.  185 158,  190 

Fountaine  Crossing  Co.  v.  Ranch,  117  Mich.  401,  75  N.  W. 

1063     119 

Fowler  v.  Atkinson,  6  Minn.  578 164 

Fowler  v.  Shearer,  7  Mass.  14 162 

Fox  v.  McGregor,  11  Barb.  (N.  Y.)  41 261 

Fox  V.  Railway  Co.,  86  Iowa,  368,  58  N.  W.  259 37 

Fox  v.  Zimmerman,  77  Wis.  414,  46  N.  W.  533 237 

Fradley  v.  Hyland,  37  Fed.  49 175 

Frahm  v.  Metcalf ,  75  Neb.  241,  106  N.  W.  227 55,  141 

Frambach  v.  Frank,  33  Colo.  529,  81  Pac.  247 211 

Frame  v.  Tnal  Co.,  97  Pa.  St.  309 199 


TABLE  OF  CASES  CITED.  283 

References  are  to  pages. 

Francis  V.  Kerker,  85  111.  190 235 

Francis  v.  Reeves,  137  N.  C.  269,  49  S.  E.  213 62 

Frank  v.  Herrold,  63  N.  J.  Eq.  443,  52  Atl.  152 3 

Frank  v.  Jenkins,  22  Ohio  St.  597 80 

Franklin  v.  Johnson,  147  111.  520,  35  N.  E.  480 167 

Franklin  Ins.  Co.  v.  Sears,  21  Fed.  290 227 

Franklin  Mining  Co.  v.  Harris,  24  Mich.  115 254 

Fraternal  Army  of  Amer.  v.  Evans,  215  111.  629,  74  N.  E.  689  64 
Fred  W.  Wolf  Co.  v.  Galbraith,  39  Tex.  Civ.  App.  351,  87  S. 

W.  390 138 

Frederickson  v.  Locomobile  Co.,  78  Neb.  775,  111  N.  W.  845. .  24S 

Freeman  v.  Great  Western  Ry.  Co.,  38  L.  T.  Rep.  851 23 

Freeman  the  v.  Buckingham,  18  How.  (U.  S.)  182 191 

Freeman  v.  Otis,  9  Mass.  272,  2  Am.  Dec.  66 214 

Freidlander  v.  Ry.  Co.,  130  U.  S.  416 191,  192 

French  v.  Price,  24  Pick.  (Mass.)  13 174 

Frick  &  Co.  v.  Larned,  50  Kan.  776,  32  Pac.  383 231 

Frink  v.  Roe,  70  Cal.  296,  11  Pac.  820 100,  101,  105,  122 

Fritchey  v.  Bosley,  56  Md.  96 158 

Fritz  V.  Chicago  Grain  Co.,  136  Iowa  699,  114  N.  W.  193 142 

Frost  V.  Deering,  21  Me.  156 31 

Frost  V.  Wolf,  77  Tex.  455,  14  S.  W.  440 52 

Frothingham  v.  Everton,  12  N.  H.  239 262 

Fry  V.  Leslie,  87  Va.  2G9,  12  S.  E.  671 22 

Fuller  V.  Ellis,  39  Vt.  345,  94  Am.  Dec.  327 226 

Fuller  V.  Rice,  52  Mich.  435,  IS  N.  W.  204 42 

Fullman  v.  West  Brookfield,  9  Allen  (Mass.)  1 160,  213 

Furnas  v.  Frankman,  6  Neb.  429 38 

Fumeaux  v.  Esterly,  36  Kan.  539,  13  Pac.  824 136 

G. 

Gaffney  v.  Hayden,  110  Mass.  137,  14  Am.  Rep.  580 22 

Galveston,  etc.,  Ry.  Co.  v.  Allen,  42  Tex.  Civ.  App.  576,  94 

S.  W.  417 142 

Gangwere,  in  re,  14  Pa.  St.  417,  53  Am.  Dec.  554 18 

Gano  V.  Chicago,  etc.,  Ry.  Co.,  49  Wis.  57,  5  N.  W.  45 125 

Gardner  v.  Allen,  6  Ala.  187,  41  Am.  Dec.  45 199 

Gardner  v.  Boston  &  M.  Ry.  Co.,  70  Me.  181 4 

Gardner  v.  Gardner,  5  Cush.  (Mass.)  483,  52  Am.  Dec.  740..  52 

Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec.  192 236 


284:  TABLE  OF  CASES  CITED. 

References  are  to  pages 

Garfield  v.  Peerless  Car  Co.,  189  Mass.  395,  75  N.  E.  695 57 

Garland  v.  Wells,  15  Neb.  298,  IS  N.  W.  132 54,  81 

Garretsen  v.  Dunkel,  50  Mo.  104,  11  Am.  Rep.  405 189 

Garrey  v.  Stadler,  67  Wis.  512,  30  N.  W.  787 , 246 

Gaston  v.  Drake,  14  Nev.  175,  33  Am.  Rep.  548 46 

Gates  V.  Bingham,  49  Conn.   275 17 

Gates  V.  Brower,  9  N.  Y.  205,  59  Am.  Dec.  530 63 

Gaty  V.  Sack,  19  Mo.  App.  470 24 

Gay  V.  Paige,  150  Mich.  463,  114  N.  W.  217 240 

Gelatt  V.  Ridge,  117  Mo.  553,  23  b.  W.  882 90,  247 

George  N.  Pierce  Co.  v.  Beers,  190  Mass.  199,  76  N.  E.  603. .  235 
George  O.  Richardson  Mach.  Co.  v.  Swartzel,  70  Kan.  773,  79 

Pac.  660 250 

George  v.  Sandell,  18  La.  Ann.  535 67 

Georgia  Pac.  Ry.  Co.  v.  Propst,  83  Ala.  518,  3  South.  764 37 

Gerhardt  v.  Boatmens  Sav.  Inst.,  38  Mo.  60,  90  Am.  Dec.  407     243 

Gerhart  v.  Peck,  42  Mo.  App.  644 55 

German  Fire  Ins.  Co.  v.  Grunert,  112  111.  68,  1  N,  E.  113 153 

Geisinger  v.  Beyl,  80  Wis.  443,  50  N.  W.  501 237 

Geylin  v.  DeVilleroi,  2  Houst.  (Del.)  311 55,  129 

Gheen  v.  Johnson,  90  Pa.  St.  38 156 

Gibney  v.  Curtis,  61  Md.  192 128 

Gibson  v.  Miller,  29  Mich.  355 205 

Gibson  v.  Snow  Hdw.  Co.,  94  Ala.  346,  10  South.  304...  2,  59,  118 

Gilbert  v.  Deshon,  107  N.  Y.  324,  14  N.  E.  318 140,  142 

Gilbert  v.  How,  45  Minn.  121,  47  N.  \v .  G43 127 

Gilbert  v.  Holmes,  64  111.  548 93,  97 

Gilbraith  v.  Lineberger,  69  N.  C.  145 64 

Gilchrist  v.  Pearson,  70  Miss.  351,  12  South.  333 130 

Gill  V.  Middleton,  105  Mass.  477,  7  Am.  Rep.  548 233,  234 

Gillett  V.  Board  of  Suprs.  Logan  Co.,  67  111.  256 47 

Gilliland  v.  Gasque,  6  S.  C.  406 158 

Gilman  v.  Brown,  1  Mason  (U.  S.)  191,  Fed.  Cas.  No.  5,441..  261 
Gilman  Linseed  Oil  Co.  v.  Norton,  89  Iowa  434,  56  N.  W.  663 

146,   201 

Glass  V.  Glass,  76  Ala.  3G8 20 

Glen  V.  Savage,  14  Ore.  567,  13  Pac.  442 119,  142 

Goesle  v.  Binicler,  14  How.  (U.  S.)  589 13 

Gootz  V.  Bank,  119  U.  S.  551 182 

Golin.ski  v.  Allison,  114  Cal.  458,  46  Pac.  295 121 

Gonzalla  v.  Bartlesman,  143  111.  634,  32  N.  E.  532 2:;7 


TABLE  OP  CASES   CITED.  285 

References  are  to  pages. 

Goodenough  v.  Thayer,  132  Mass.  152 211 

Goodeno-w  v.  Tyler,  7  Mass.  36,  5  Am.  Dec.  22 147,  155 

Goodman  v.  Meixel,  65  Ind.  32 257 

Goodwin  v.  Bowden,  54  Me.  424 219 

Gordon  v.  Insurance  Co.,  2  Pick.  (Mass.)  249 58 

Goss  V.  Stevens,  32  Minn.  472,  21  N.  W.  549 78,  90,  247 

Gould  V.  Norfolk  Lead  Co.,  9  Cush.  (Mass.)  338,  57  Am.  Dec. 

50 113 

Gower  v.  Andrews,  159  Cal.  119,  43  Am.  Rep.  242 23? 

Grady  v.  Inslrance  Co.,  60  Mo.  116 33,  34 

Graff  V.  Callahan,  158  Pa.  St.  380,  27  Atl.  1009 2,  63 

Graham  v.  Cummings,  208  Pa.  St.  516,  57  Atl.  943 12,  239 

Graham  v.  Duckwall,  8  Bush.   (Ky.)   12 155,  156,  223 

Grand  Pac.  Hotel  Co..  v.  Pinkerton,  217  111.  61,  75  N.  E.  427. .  142 
Grand  Rapids  Elec.  Co.  v.  Walsh  Mfg.  Co.,  142  Mich.  4,  105 

N.  W.  1 135 

Grand  Rapids,  etc.,  Ry.  Co.  v.  King,  101  Ind.  App.  701,  83  N. 

E.    778 189 

Grant  v.  Humerick,  123  Iowa  571,  94  N.  W.  510 112 

Grant  v.  Ludlow,  8  Ohio  St.  1 233 

Gratz  V.  Improvement  Co.,  27  C.  C.  A.  305,  82  Fed.  381 98 

Graul  V.  Strutzel,  53  Iowa  715,  6  N.  W.  119 147 

Grauman  v.  Reese,  13  Ky.  Law  Rep.  683 260 

Gravatt  v.  State,  25  Ohio  St.  162 ?. 

Graves  v.  Horton,  38  Minn.  66,  35  N.  W.  568 69,  112,  116,  129 

Gray  v.  Farmers  Nat.  Bank,  81  Md.  631,  32  Atl.  518 9 

Gray  v.  McReynolds,  65  Iowa  461,  21  N.  W.  777.' 42 

Great  Lake  Towing  Co.  v.  Mills  Transp.  Co.,  83  C.  C.  A.  607, 

155   Fed.   11 197 

Great  Western  Mining  Co.  v.  Woodmas,  12  Colo.  46,  20  Pac. 

771 5 

Greeley  v.  Barlett,  1  Greenl.  (Me.)  172,  10  Am.  Dec.  54 231 

Green  v.  Hinkley,  52  Iowa  633,  3  N.  W.  688 59,  112,  116 

Greenberg  v.  Palmieri,  71  N.  J.  Law  83,  58  Atl.  297 174 

Greene  v.  Goodard,  9  Mete.  (Mass.)  212 258 

Greenfield  Bank  v.  Crafts,  4  Allen  (Mass.)  447 74 

Greenleaf  v.  Moody,  13  Allen  (Mass.)  363 229 

Greening  v.  Steele,  122  Mo.  287,  26  S.  W.  971 93 

Gregory  v.  State,  26  Ohio  St.  510 40,  193 

Griggs  V.  Swift,  82  Ga.  392,  9  S.  E.  1062 102 

Grinell  V.  Buchannan,  1  Daly  (N.  Y.)  538 34 


286  TABLE  OF  CASES  CITED. 

References  are  to  pages. 

Griswold  v.  Gebbie,  126  Pa.  St.  353,  17  Atl.  673 131,  190 

Griswold  v.  Haven,  25  N.  Y.  595,  82  Am.  Dec.  380 40,  70,  190 

Grove's  Estate,  In  re,  127  Iowa  121,  102  N.  W.  804 4S 

Grosscup  V.  Downey,  105  Md.  273,  65  Atl.  930 121 

Grove  v.  Hodges,  55  Pa.  St.  504 7S 

Groover  v.  Warfield,  50  Ga.  644 223 

Grubel  v.  Busche,  75  Kan.  820,  91  Pac.  73 201 

Grumley  v.  Webb,  44  Mo.  444,  100  Am.  Dec.  304 237 

Guadelupo,  etc.,  Mining  Co.  v.  Beatty  (Tenn.)  1  S.  W.  348..  80 

Guelich  v.  Bank,  56  Iowa  434,  9  N.  W.  328 38,  39,  243 

Guesnard  v.  Railway  Co.,  76  Ala.  453 132 

Guest  v.  Burlington  Opera  House  Co.,  74  Iowa  457,  38  N.  W. 

158 174 

Guild  V.  Allen,  28  R.  I.  430,  67  Atl.  855 13 

Gulick  V.  Grover,  38  N.  J.  Law  463,  97  Am.  Dec.  728 124,  152 

Gundlach  v.  Fisher,  59  111.  172 93 

Gussner  v.  Hawks  (N.  D.)  101  N.  W,  898 203 

Guthrie  v.  Imbrie,  12  Ore.  182,  6  Pac.  664 167 

H. 

Haas  V.  Damon,  9  Iowa  589 242 

Haas  V.  Malto-Grapo  Co.,  148  Mich.  358,  111  N.  W.  1059 247 

Hackett  v.  Van  Frank,  105  Mo.  App.  384,  79  S.  W.  1013 116 

Haebler  v.  Luttgen,  61  Minn.  315,  63  N.  W.  720 261 

Hagedorn  v.  Oliverson,  2  M.  &  S.  485 75 

Hager  v.  Rice,  4  Colo.  90,  34  Am.  Rep.  68 168 

Haggerty  v.  St.  Louis  Ice  Mfg.  Co.,  143  Mo.  238,  44  S.  W.  1114  42 

Hahl  V.  Kellogg,  42  Tex.  Civ.  App.  636,  94  S.  W.  389 253 

Haines  v.  Lewis,  54  Iowa  307,  6  N.  W.  495 47 

Hale  V.  Woods,  10  N.  H.  470,  34  Am.  Dec.  176 162,  163 

Hall  v.  Bliss,  118  Mass.  554,  19  Am.  Rep.  476 108 

Hall  V.  Crandall,  29  Cal.  567,  89  Am.  Dec.  64 215 

Hall  v.  Finch.  29  Wis.  278,  9  Am.  Rep.  559 56 

Hall  V.Hall,  44  N.  H.  293 240 

Hall  v.  Harper.   17    111.    82 81 

Hall  v.  Lauderdale,  46  N.  Y.   72 216 

Hall  v.  Wallace,  88  Cal.  434,  26  Pac.  360 55 

Hall  v.  White,  J23  Pa.  St.  95,  16  Atl.  521 70 

Halllday  v.  Stuart,  151  U.  S.  229,  14  Sup.  Ct.  302 15S 

H.iluptzok  V.  Railway  Co.,  55  Minn.  446,  57  N.  W.  144 32 


TABLE  OF  CASES  CITED.  287 

References  are  to  pages. 

Ham  V.  Boody,  20  N.  H.  411,  51  Am.  Dec.  435 89 

Hamburg,  The,  Br.  &  L.  253  (Eng.) 58 

Hamilton  Buggy  Co.  v.  Iowa  Buggy  Co.,  88  Iowa  364 181 

Hamilton  v.  Love,  152  Ind.  641,  53  N.  E.  181 251 

Hamilton  Nat.  Bank  v.  Nye,  37  Ind.  App.  464,  77  N.  E.  295..  150 

Hamilton  v.  Frothingham,  59  Mich.  253 247 

Hamm  v.  Drew,  83  Tex.  77,  18  S.  W.  434 114 

Hammatt  v.  Emerson,  27  Me.  308,  14  Am.  Dec.  598 181 

Hammett  v.  Brown,  60  Ala.  498 242 

Hammond  v.  Hannin,  21  Mich.  374,  4  Am.  Rep.  490 52,  78,  90 

Hammond  v.  Hussey,  51  N.  H.  40,  12  Am.  Rep.  41 233 

Hancock  v.  Byrne,  35  Ky.  513 98 

Hankinson  v.  Lombard,  25  111.  468,  79  Am.  Dec.  384 119 

Hanks  v.  Drake,  49  Barb.  (N.  Y.)  186 91 

Hanscom  v.  Railway  Co.,  53  Minn.  119,  54  N.  W.  944 57 

Hansen  v.  Erickson,  28  111.  257 255 

Hardee  v.  Hall,  12  Bush.   (Ky.)   327 129 

Hardy  v.  Waters,  38  Me.  450 21 

Harlan  v.  Ely,  68  Cal.  52^,  9  Pac.  947 228 

Harland  v.  Lilienthal,  53  N.  Y.  438 26 

Harper  v.  Bank,  54  Ohio  St..  425,  44  N.  E.  97 174 

Harper  v.  Little,  2  Greenl.  (Me.)  14,  11  Am.  Dec.  25 102,  104 

Harralson  v.  Stein,  50  Ala..  347 32 

Harriman  v.  Railway  Co.,  45  Ohio  St.  11,  12  N.  E.  451 188 

Harrington  v.  Gies,  45  Mich.  374 251 

Harrington  v.  Hall,  (Del.)   63  Atl.  875 189 

Harris  v.  Chamberlain,  126  Mich.  280,  85  N.  W.  728 45 

Harris  v.  San  Diego  Flume  Co.,  87  Cal.  526,  25  Pac.  758....  34 

Harrison  v.  Jackson,  7  T.  R.  207  (Eng.) 51 

Harrison  v.  Kansas  City,  etc.  Ry.  Co.,  50  Mo.  App.  332 142 

Harrison  v.  McHenry,  9  Ga.  164,  52  Am.  Dec.  435 70,  71 

Harrison  v.  Mo.  Pac.  Ry.  Co.,  74  Mo.  264,  41  Am.  Rep.  318..  153 

Hart  V.  TenEyck,  2  Johns.  Ch.  (N.  Y.)  62 241 

Hartford  Ins.  Co.  v.  Sherman,  223  111.  329,  78  N.  E.  923. .  178, 191 

Hartford  Ins.  Co.  v.  Wilcox,  57  111.  180 26,  104,  120,  122 

Hartley's  Appeal,  53  Pa.  St.  212,  91  Am.  Dec.  207 100 

Harvey  v.  McAdams.  32  Mich.  472 12 

Harvey  v.  Mason  City,  etc.  Ry.,  126  Iowa  465,  105  N.  W.  958 .  130 

Harvey  v.  Merill,  150  Mass.  1,  22  N.  E.  49 48 

Harvey  v.  Smith,  179  Mass.  592,  61  N.  E.  217 105 

Harvey  v.  Turner,  4  Rawle,  (Pa.)  222 240 


288  Ti^LE  OF  CASES  CITED. 

References  are  to  pages. 

Haskell  t.  Starbard,  152  Mass.  117,  25  N.  E.  14 190 

Haskell  v.  Whitney,  12  Mass.  47 158 

Haskins  v.  ^oyster,  70  N.  C.  601,  16  Am.  Rep.  780 206 

Hastings  v.  Dollarhide,  24  Cal.  195 21 

Hastings  Nat.  Bank  v.  Farmers  Bank,  56  Neb.  149,  76  N.  W. 

430 138 

Hatch  V.  Coddington,  95  U.  S.  48 65,  99 

Hathaway  v.  Moran,  44  Me.  67 71 

Haughton  v.  Maurer,  55  Mich.  323,  21  N.  W.  426 115 

Haven  v.  Snow,  14  Pick.  (Mass.)  28 186 

Hawkins  V.  Chace,  19  Pick.  (Mass.)  502 55 

Hawkins  v.  McGroarty,  110  Mo.  550,  19  S.  W.  830 78 

Hawks  V.  Davis,  185  Mass.  119,  69  N.  E.  1072 115 

Hawley  v.  Keeler,  53  N.  Y.  114 26 

Hayes  v.  Campbell,  63  Cal.  143 142 

Hayes  v.  City  of  Atlanta,  1  Ga.  App.  25,  57  S.  E.  1087 78 

Hayner  v.  Churchill,  29  Mo.  App.  676 136,  143 

Hajmes  v.  Gay,  37  Wash.  230,  79  Pac.  794 185 

Hayward  v.  Nordberg  Mfg.  Co.,  29  C.  C.  A.  438,  85  Fed.  4 43 

Hayward  Lbr.  Co.  v.  Cox  (Tex.  Civ.  App.)  104  S.  W  403 135 

Hazletine  v.  Miller;  44  Me.  177 153 

Hazleton  v.  Sheckels,  202  U.  S.  71 43 

Heald  v.  Handy,  89  Cal.  032,  27  Pac.  67 153 

Hearns  v.  Waterbury  Hosp.,  6  Conn.  98,  33  Atl.  595 40,  187 

Heath  v.  Goslin,  80  Mo.  310.,  50  Am.  Rep.  505 14,  15 

Heath  v.  Nutter,  50  Me.  378 ^ 128 

Heath  v.  Stoddard,  91  Me.  499,  40  Atl.  547 146,  202 

Heddens  v.  Younglove,  46  Ind.  212 242 

Hedden  v.  Griffin,  136  Mass.  229,  49  Am.  Rep.  25 210 

Hedin  v.  Institution,  62  Minn.  146,  64  N.  W.  158 219 

Hefferman  v.  Buit,  7  Iowa  320,  71  Am.  Dec.  445 157 

Heff ron  v.  Armsby,  01  Mich.  505,  28  N.  W.  072 11 " 

Haggenmyer  v.  Marks,  37  Minn.  0,  32  N.  W.  785 '• .     230 

Heineman  v.  Heard,  50  N.  Y.  35 230 

Heinzerling  v.  Agen,  46  Wash.  300,  90  I'ac.  2G2 85 

Henderson  v.   Ford,  46    Tex.   627 100 

Henderson  v.  State,  50  Ind.  234 T 

Heney  v.  Sargent,  54  Cal.  396 23 

Honricus  v.  Englcrt,  137  N.  Y.  488,  33  N.  E.  550 190 

Henry  Amos  Packing  Co.  V.  Tucker,  8  Mo.  App.  95 170 


TABLE  OF  CASES  CITED.  289 

References  are  to  pages. 

Henry  Christian  B.  &  L.  Assn.  v.  Walton,  181  Pa.  St.  201,  37 

Atl.  261 73 

Henry  v.  Heeb,  114  Ind.  275,  16  N.  E.  606 73,  74 

Henry  v.  Lane,  62  C.  C.  A.  625,  128  Fed.  243 120 

Henry  v.  Omaha  Packing  Co.  (Neb.)  115  N.  W.  777 186 

Hensel  v.  Mass,  94  Mich.  563,  54  N.  W.  381 59,  117 

Henshaw  v.  Foster,  9  Pick.  (Mass.)  312 30 

Herring  v.  Hottendorf,  74  N.  C.  588 150 

Herring  v,  Skaggs,  62  Ala.  180,  34  Am.  Rep.  4 133,  147 

Hersey  v.  Lambert,  50  Minn.  373,  52  N.  W.  963 52 

Heyn  v.  O'Hagen,  60  Mich.  150,  26  N.  W.  861 83 

Hibbard  v.  Peek,  75  Wis.  619,  44  N.  W.  641 132 

Higgins  V.  Armstrong,  9  Colo.  38,  10  Pac.  232 138 

Higgins  V.  Bellinger,  22  Mo.   397 172 

Higgins  V.  Moore,  34  N.  Y.  417 7,  147,  156 

Higgins  V.  Senior,  8  M,  &  W.  834  (Eng.) 173,  210 

Higley  v.  Dennis,  40  Tex.  Civ.  App.  133,  88  S.  W.  400 150 

Hildreth  v.  Ayer  &  Lord  Tie  Co.,  32  Ky.  Law.  Rep.  1212,  108 

S.   W.   255 242 

Hill  V.  Cavely,  7  N.  H.  215,  26  Am.  Dec.  735 220 

Hill  V.  Day,  34  N.  J.  Law,  150 107,  108 

Hill  V.  Hill,  121  Ind.  255,  23  N.  E.  37 246 

Hill  V.  McMunn,  232  111.  488,  83  N.  W.  963 90 

Hill  V.  Miller,  76  N.  Y.  32 149 

Hill  V.  Williams,  59  N.  C.  242 246 

Hillman  v.  Hulett,  149  Mich.  289,  112  N.  W.  918 172 

Hilton  V.  Vanderbilt,  82  N.  Y.  591 262 

Hinderer  v.  State,  38  Ala.  415 4 

Hindle  v.  Holcomb,  34  Wash.  336,  75  Pac.  873 239 

Hinds  V.  Henry,  36  N.  J.  Law,  328 248,  249 

Hinnon  v.  Newman,  35  Kan.  709,  12  Pac.  144 47 

Hipes  V.  State,  73  Ind.  39 194 

Hipp  V  State,  5  Blackf,   (Ind.)  149 194 

Hitchcock  V.  Buchannan,  105  U.  S.  416 167 

Hittson  V.  Browne,  3  Colo.  304 25 

Hoboken  Printing  Co.  v.  Kahn,  59  N.  J.  Law,  218,  35  Atl.  1053     189 

Hobson  V.  Hassett,  76  Cal.  203,  18  Pac.  320 213 

Hodge  V.  Coombs,  66  U.  S.  192 141 

Hoene  v.  Pollak,  118  Ala.  617,  24  South  349 19 

Hoge  V.  Turner,  96  Va.  624,  32  S.  E.  291 116 

Hogg  V.  Snaith,  1  Taunt  347   (Eng.) 122. 

19 


290  TABLE  OF  CASES  CITED, 

Refp.rences  are  to  pages. 

Hoit  V.  Cooper,  41  N.  H.  Ill 118 

Holbrook  v.  Chamberlain,  116  Mass.  155,  17  Am.  Rep.  146. . . .       78 

Holbrook  v.  Oberne,  56  Iowa  324,  9  N.  W.  291 153 

Holden  v.  Ry.  Co.,  73  Vt.  317,  50  Atl.  1096 223 

Holden  v.  Starks,  159  Mass.  503,  34  N.  E.  1069 24S 

Holding  V.  Elliot,  5  H.  &  N.  117  (Eng.) 210 

Holdon  V.  Curry,  85  Wis.  504,  55  N.  W.  965 19 

Holker  v.  Parker,  7  Crancli  (U.  S.)  436 158 

Holladay  v.  Daily,  19  Wall  (U.  S.)  606 11,  122,  128 

Holland  v.  Moon,  39  Ark.  120 30 

Holliday  v.  Jackson.  30  Mo.  App.  263 41,  72 

Hollway  v.  Ark.  City  Mill  Co.,  77  Kan.  76,  93  Pac.  577 82,  91 

Holmau  v.  Frost,  26  S.  C.  290 201 

Homan  v.  Brooklyn  Life  Ins.  Co.,  7  Mo.  App.  22 38 

Hook  V.  Crowe,  100  Me.  399,  61  Atl.  1080 198,  200 

Hoover  v.  Perkins  Wind  Mill  Co.,  41  Minn.  143,  42  N.  W.  866       95 

Hopkins  v.  Ins.  Co.,  57  Iowa  203,  10  N.  W.  605 190 

Home  V.  Ingraham,  125  111.  198,  16  N.  E.  868 121 

Horn  V.  Western  Land  Assn.,  22  Minn.  233 251 

Hornberger  v.  Orchard,  39  Neb.  639,  58  N.  W.  425 13 

Horner  v.  Beasley,  105  Md.  193,  65  Atl.  820 115 

Horsey  v.  Chew,  65  Md.  555 15S 

Hosier  v.  Beard,  54  Ohio  St.  405,  56  Am.  St.  Rep.  720 IT 

Houghtaling  v.  Marvin,  7  Barb.   (N.  Y)  412 105 

Houghton  V.  Bank,  26  Wis.  663,  7  Am.  Rep.  707 214 

Houghton  V.  Dodge,  18  N.  Y.  Super.  Ct.  326 80 

Houseman  v.  Assn.,  81  Pa.  St.  256 185 

Houston  County  Oil  Co.  v.  Bibby,  43  Tex.  Civ.  App.  100,  95  S. 

W.   562 38 

Hovey  v.  Magill,  2  Conn.  680 160 

Howard  College  v.  Pace,  15  Ga.  486 9."i 

Howard  v.  Daily,  61  N.  Y.  362,  19  Am.  Rep.  285 250,  251 

Howard  v.  Murphy,  70  N.  J.  Law  141,  56  Atl.  143 42,  4S 

Howard  v.  Sheward,  L.  R.  2  C.  P.  148 14i) 

Howe  v.  Ry.  Co.,  37  N.  Y.  297 25S 

Howe  Mch.  Co.  v.  Clark,  15  Kan.  492 114 

Howell  V.  Graff,  25  Neb.  130,  41  N.  W.  142 143 

Hubbard  v.  TenBrook,  124  Pa.  St.  291,  16  Atl.  817 149,  172 

Huber  v.  Zimmerman,  21  Ala.  488,  56  Am.  Dec.  255 131 

Hugglns  V.  Morrow,  47  Ark.  516,  2  S.  W.  104 105 


TABLE  OF  CASES  CITED.  291 

References  are  to  pages. 

Hughes  V.  Jones,  116  N.  Y.  67,  15  Am.  St.  Rep.  38G 17 

Hughes  V.  Washington,  72  111.  84 235 

Hull  V.  Jones,  69  Mo.  587 54 

Hull  V.  Marshall  County,  12  Iowa  270 125 

Hunt  V.  Agricultural  Wks.,  69  Minn.  539,  72  N.  W;  813. .... .  118 

Hunt  V.  Crane,  33  Miss.  669,  69  Am.  Dec.  381 251 

Hunt  V.  Douglass,  22  Vt.  128 33 

Hunt  V.  Rousmanier,  8  Wheat  (U.  S.)   174 100,  105,  lOG 

Huntington  v.  Kuox,  7  Cush.  (Mass.)  371 160,  197 

Huntley  v.  Mathias,  90  N.  C.  101,  47  Am.  Rep.  516..  124,  131,  136 

Hurlburt  v.  Brigham,  56  Vt.  368 260 

Hurley  v.  Watson,  68  Mich.  531,  36  N.  W.  726 150 

Hutchins  v.  Byrnes,  9  Gray  (Mass.)  367 163 

Hutchins  v.  Hebbard,  34  N.  Y.  27 100 

Hutchins  v.  Olcutt,  4  Vt.  549,  24  Am.  Dec.  634 261 

Hutson  V.  Prudential  Ins.  Co.,  122  Ga.  847,  50  S.  E.'lOOO....  138 

Hyde  v.  Johnson,  2  Bing.  (N.  C.)  776 30 

Hyde  v.  Wolf,  4  La.  234,  23  Am.  Dec.  484 175 

Hyman  v.  Gray,  49  N.  C.  155 242 

Hyman  v.  Waas,  79  Conn.  251,  64  Atl.  354 115 

Hynson  y.  Noland,  14  Ark.  710 100 

Hypes  V.  Griffin,  89  111.  134,  31  Am.  Rep.  71 160,  169,  171,  214 

I. 

Idaho  For.  Co.  v.  Ins.  Co.,  8  Utah  41,  29  Pac.  826 181 

Ilfleld  V.  Zeigler,  40  Colo.  401,  91  Pac.  825 75 

111.  Linen  Co.  v.  Hough,  91  111.  63 24o 

Ilsley  V.  Merriam,  7  Cush.  (Mass.)  242,  54  Am.  Dec.  721 199 

Ind.,  etc.  Ry.  Co.  v.  Adamson,  114  Ind.  282,  15  N.  E.  5 115 

Innerarity  v.  Merchants  Nat.  Bank,  139  Mass.  332,  1  N.  B.  282  187 

Irby  V.  Lawshee,  62  Ga.  216 248 

Ironwood  Store  Co.  v.  Harrison,  75  Mich.  197,  42  N.  W.  808. .  76 

Irvin  V.  Reeves  Pulley  Co.,  20  Ind.  App.  101,  48  N.  E.  601..  39 

Irvine  v.  Grady,  85  Tex.  120,  19  S.  W.  1028 185 

Irvine  v.  Watson,  5  Q.  B.  Div.  102  (Eng.) 175 

Irwin  V.  Williar,  110  U.  S.  499 49,  259 

Isham  V.  Parker,  3  Wash.  St.  755,  29  Pac.  835 230 

Isham  V.  Post,  141  N.  Y.  100,  35  N.  E.  1084 233 

Ish  V.  Crane,  8  Ohio  St.  520 103 


292  TABLE  OF  CASES  CITED. 

Beferences  are  to  pages. 


J. 


Jackson  ▼.  Bank,  92  Tenn.  154,  20  S.  W.  820 150,  152 

Jacquin  v.  Boutard,  157  N.  Y.  686,  51  N.  E.  1091 249 

Jacquith  v.  Davenport,  191  Mass.  415,  78  N.  E,  93 185 

Jahn  V.  Kelly,  58  111.  App.  570 112 

James  v.  Allen  County,  44  Ohio  St.  226,  6  N.  E.  246 250 

James  v.  Bixby,  11  Mass.  34 246 

Jamison  v.  Weaver,  81  Iowa  212,  46  N.  W.  996 232 

Janney  v.  Boyd,  30  Minn.  319,  15  N.  W.  308 147 

Jansen  v.  Williams,  36  Neb.  869,  55  N.  W.  279 25 

Jaques  V.  Todd,  3  Wend.  (N.  Y.)  83 149 

Jarvis  v.  Hoyt,  2  Hun.  (N.  Y.)  637 229 

Jarvis  v.  Rogers,  15  Mass.  389 261 

Jefferson  County  v.  Slagle,  66  Pa.  St.  202 27 

Jeffrey  v.  Bigelow,  13  Wend.  (N.  Y.)  518,  28  Am.  Dec.  476..  190 

Jeffrey  v.  Hurst,  49  Mich.  31,  12  N.  W.  898 121,  127,  148 

Jefts  V.  York,  10  Cush.  (Mass.)  392 217 

Jett  V.  Hempstead,  25  Ark.  463 242 

Jewell  Nursery  Co.  v.  State,  5  S.  D.  623,  59  N.  W.  1025 85 

Jewett  Pub.  Co.  v.  Butler,  159  Mass.  597,  34  N.  E.  1087 42 

John  Gund  Brewing  Co.  v.  Peterson,  130  Iowa  301,  106  N.  W. 

741     150 

Johnson  v.  Ala.  Gas  Co.,  90  Ala.  505,  8  South.  101 143 

Johnson  v.  Clark,  20  Ind.  App.  247,  50  N.  E.  762 259 

Johnson  v.  Craig,  21  Ark.  533 148 

Johnson  v.  Cunningham,  1  Ala.  249 35 

Johnson  v.  Dodge,  17  111.  433 132 

Johnson  v.  Hoover,  72  Ind.  395 87 

Johnson  v.  Hulings,  103  Pa.  St.  498 25 

Johnson  v.  Hunt,  81  Ky.  321 48 

Johnson  v.  Hurley,  115  Mo.  513,  22  S.  W.  492 64 

Johnson,  In  re,  102  Minn.  8,  112  N.  W.  894 SO 

Johnson  v.  Investment  Co.,  40  Neb.  480,  64  N.  AV.  1100 64,  153 

Johnson  v.  Johnson,  27  S.  C.  309,  3  S.  E.  606 105 

Johnson  v.  Jones,  4  Barb.  (N.  Y)  369 13s 

Johnson  v.  Land  Co.,  IIG  N.  C.  926,  21  S.  E.  28 79 

Johnson  v.  McGruder,  15  Mo.  365 148 

Johnson  v.  N.  Y.  Central  Transp.  Co.,  33  N.  Y.  610,  88  Am, 

Dec.  416 227 

.Johnson   v.   Smith,  21  Conn.  C27 21& 


TABLE  OF  CASES  CITED,  293 

References  are  to  pages. 

Jonathan  Mills  Co.  v.  Whitehurt,  19  C.  C.  A.  130,  72  Fed.  496  142 

Jones  V.  Adler,  34  Md.  440 248,  252 

Jones  V.  Graham,  etc.  Transp.  Co.,  51  Mich.  539 97 

Jones  V.  Hodgkins,  61  Me.  480 97 

Jones  V.  Inniss,  32  Kan.  177,  4  Pac.  95 158 

Jones  V.  Marks,  47  Cal.  242 52 

Joor  V.  Sullivan,  5  I  a.  Ann.  177 34 

Jordan  v.  Greig,  33  Colo.  360,  80  Pac.  1045 64,  119 

Joseph  V.  Fisher,  122  Ind.  399,  23  N.  E.  856 109 

Judson  V.  Sierra,  22  Tex.  365 109 

K. 

Kalbitzer  v.  Goodhue,  52  W.  Va.  435,  44  S.  E.  264 15 

Kane  v.  Barstow,  42  Kan.  465,  22  Pac.  588 128,  137 

Kane  v.  Sholars,  41  Tex.  Civ.  App.  154,  90  S.  W.  937 124 

Karns  v.  Olney,  80  Cal.  90,  22  Pac.  57 119 

Kean  v.  Davis,  21  N.  J.  Law  683,  47  Am.  Dec.  182 169 

Kean  v.  Landrum,  72  S.  C.  556,  52  S.  E.  421 124 

Kearney  v.  Clutten,  101  Mich.  106.  59  N.  W.  419 219 

Kearns  v.  Nickse,  80  Conn.  23,  66  Atl.  779 13G 

Keating  v.  Hyde,  23  Mo.  App.  555 46 

Keay  V.  Fenwick,  1  C.  P.  Div.  745   (Eng.) .' 12 

Keefe  v.  Sholl,  181  Pa.  St.  90,  37  Atl.  116 191 

Keidan  v.  Winegar,  95  Mich.  430,  54  N.  W.  901 169,  170 

Keighler  v.  Mfg.  Co.,  12  Md.  383,  71  Am.  Dec.  600 240 

Keim  v.  Lindley  (N.  J.  Eq.),  30  Atl.  1063 132 

Keim  v.  O'Reilly,  54  N.  J.  Law  418,  34  Atl.  1073 73 

Keith  V.  Herschberg  Optical  Co.,  48  Ark.  138,  2  S.  W.  777..  139 

Kelly  V.  Bowerman,  113  Mich.  446,  71  N.  W.  836 107 

Kelly  V.  Brennan,  55  N.  J.  Eq.  423,  37  Atl.  137 93,  97 

Kelly  V.  Munson,  7  Mass.  318 223 

Kelly  V  Phelps,  57  Wis.  425,  15  N.  W.  385 82 

Kelly  V.  Scott,  49  N.  Y.  595 42 

Kelly  V.  Thuey,  102  Mo.  522,  15  S.  W.  62,  143  Mo.  422,  45  S. 

W.  301 19S 

Kelsey  v.  Bank,  69  Pa.  St.  426 7" 

Kempher  v.  Rosenthal,  81  Tex.  12,  16  S.  W.  639 88 

Kendrick  v.  Colyar,  143  Ala.  597,  42  South,  110 190 

Kennedy  v,  McKay,  45  N,  J,  Law  288 190 


294  TABLE  OF  CASES   CITED. 

References  are  to  pages. 

Kennesaw  Guano  Co.  v.  Wappo  Mills,  119  Ga.  776,  47  S.  E. 

205 240 

Kent  V.  Addicks,  60  C.  C.  A.  660,  126  Fed.  112 217 

Kent  V.  Tyson,  20  N.  H.  123 56,  59.  117 

Kent  V.  Bornstein,  12  Allen   (Mass.)  342 224 

Kepler  v.  Jessup,  11  Ind.  App.  241,  37  N.  E.  G55 232 

Kerr  v.  Cotton,  23  Tex.  411 227 

Kersaw  v.  Kelsey,  100  Mass.  561 109 

Kerslake  v.  Shoonmaker,  1  Hun.  (N.  Y. )  436 116 

Ketchum  v.  Verdell,  42  Ga.  534 79 

Kevanne  v.  Miller,  4  Cal.  App.  598,  88  Pac.  643 239 

Keyes  v.  Bradley,  73  Iowa  589,  35  N.  W.  656 239 

Keyes  v.  Westford,  17  Pick.  (Mass.)  273 257 

Keyser  v.  Hinkle,  127  Mo.  App.  62,  106  S.  W.  98 191 

Keyser  v.  Ry.  Co.,  66  Mich.  390,  33  N.  W.  867 180,  183 

Kiewart  v.  Rindskorf,  46  Wis.  481,  1  N.  W.  163 238 

Kilbourn  v.  Sunderland,  130  U.  S.  505 24 

Kilpatrick  v.  Wiley,  197  Mo.  123,  95  S.  W.  213 96 

Kindig  v.  March,  15  Ind.  248 101 

Kinggan  &  Co.  v.  Silvers,  30  Ind.  App.  80,  37  N.  E.  413 4 

King  V.  Patterson,  13  R.  I.  117,  43  Am.  Rep.  13 197 

King  V.  Seaboard,  etc.,  Ry.  Co.,  140  N.  C.  443,  53  S.  E.  237. . .  153 

Kings  V.  Sparks,  77  Ga.  285,  1  S.  E.  266 151,  152 

Kinsley  v.  Davis,  104  Mass.  178 173 

Kinsley  v.  Siebrecht,  92  Me.  23,  42  Atl.  249 172 

Kirk  V.  Hamilton,  102  U.  S.  68 64 

Kirklin  v.  Assn.,  107  Ga.  313,  33  S.  E.  83 50 

Kirkpatrick  v.  Pease,  202  Mo.  471,  101  S.  W.  651 80 

Kirkstall  Brewing  Co.  v.  Furness  Ry.  Co.  L.  R.  9  Q.  B.  468 

(Eng)   ISO 

Kirschbon  v.  Bonzel,  67  Wis.  178,  29  N.  W.  907 172 

Kline  v.  Bank,  50  Kan.  91,  31  Pac.  688 168 

Knabe  v.  Ternot,  16  La.  Ann.  13 24 

Knapp  V.  Alvord,  10  Paige  (N.  Y.)  205,  40  Am.  Dec.  241. .   107,  259 

Knickerbocker  v.  Wilcox,  83  Mich.  200,  47  N.  W.  123 212 

Knox  V.  American  Co.,  148  N.  Y.  441,  42  N.  E.  988 193 

Komorowski  v.  Krumdrick,  56  Wis.  23,  13  N.  W.  881 149 

Konta  V.  St.  Louis  Stock  Exchange,  189  Mo.  36,  87  S.  W.  S69  15 

Kozolm  V.  Dcarlove,  144  111.  23,  32  N.  E.  542 78 

Kraft  V.  Fancher,  44  Md.  204 132 

Kramer  v.  Winslow,  154  Pa.  St.  G37.  25  Atl.  766 239 


TAELE  OF  CASES  CITED.  295 

References  are  to  pages, 

Kroeger  v.  Pitcairn,  101  Pa.  St.  311,  47  Am.  Rep.  718 216 

Kribben  v.  Haycraf t,  26  Mo.  396 46 

Krider  v.  Western  College,  31  Iowa  547 86 

Krolik  V.  Curry,  148  Micb.  214,  111  N.  W.  761 72 

Krutz  V.  Fisher,  8  Kan.  90 237 

Kupper  V.  Augusta,  12  Mass.  185 26 

L. 

Labadie  v.  Hawley,  61  Tex.  177,  48  Am.  Rep.  278 220 

Lacy  V.  Dubuque  Lum.  Co.,  43  Iowa  510 170 

Ladd  V.  Aetna  Ind.  Co.,  128  Fed.  298 150 

Ladd  V.  Grand  Isle,  67  Vt.  172,  31  Atl.  34 64 

Ladd  V.  Hindebrant,  27  Wis.  135,  9  Am.  Rep.  445 85 

Ladenburg  Thalraan  Co.  v.  Beal-Doyle  Co.,  83  Ark,  440,  104 

S.  W 78 

Laffin  V.  Brillington,  86  N.  Y.  Supp.  267 47 

Laflin  &  Rand  Power  Co.  v.  Sincheimer,  48  Md.  411,  30  Am. 

Rep.    472 168 

Lafond  v.  Deems,  81  N.  Y.  507 14 

Lainhart  v.  Gabbard,  28  Ky.  Law  Rep.  105,  89  S.  W.  10 57 

Laike  v.  Campbell,  18  111.  106 54 

Lake  Shore  &  M.  S.  Ry.  Co.  v.  Hutchins,  37  Ohio  St.  282 70 

Lamb  v.  Thompson,  31  Neb.  448,  48  N.  W.  58 172 

Lambert  v.  Gerner,  142  Cal.  399,  70  Pac.  53 55 

Lambert  v.  Sanford,  2  Blackf.  (Ind.)  137,  18  Am,  Dec.  149.,  158 

Lamothe  v,  St.  Louis  Dock  Co.,  17  Mo.  204 99 

Lamson  &  Goodnow  Mfg.  Co.  v.  Russell,  112  Mass.  387  195,  204,  222 

Lancaster  Nat.  Bank  v.  Taylor,  100  Mass.  18,  97  Am.  Dec.  70  205 

Landa  v.  Traders  Bank,  118  Mo.  App.  356,  94  S.  W.  770 243 

Lane  v.  Carr,  156  Pa.  St.  250,  25  Atl.  830 216 

Lane  v.  Railway  Co.,  112  Mass.  455 179 

Lang  V.  Simmons,  64  Wis.  525,  25  N.  W.  650 3 

Lang  V.  Waters,  47  Ala.  624 21 

Langdon  v.  Potter,  13  Mass.  319 228 

Lange  v.  Kaiser,  34  Mich.  318 246 

Largey  v.  Leggat,  30  Mont.  148,  75  Pac.  950 209 

Larson  v.  Association,  71  Minn.  101,  73  N.  W.  711 190 

Lattman  v.  Barrett,  62  Mo.  159 221 

Laussatt  v.  Lippincott,  6  Serg.  &  R.  (Pa.)  386,  9  Am.  Dec.  440 

36,  37,  156 


296  TABLE  OF  CASES  CITED. 

References  are  to  pages. 

Lavassar  v.  "Wasliburne,  50  Wis.  200,  6  N.  W.  516 19 

Laverty  v.  Snethen,  68  N.  Y.  523,  23  Am.  Rep.  184 228 

Law  V.  Stokes,  32  N.  J.  Law  249,  90  Am.  Dec.  655 135,  147 

Lawall  V.  Groman,  180  Pa.  St.  532,  37  Atl,  98 113 

Lawrence  v.  Gullifer,  38  Mo.  532 , 253 

Lawrence  v.  Lewis,  133  Mass.  561 117 

Lawrence  v.  McArter,  10  Ohio  St  37 76 

Lawrence  v.  Storington  Bank,  6  Conn.  521 7 

Lazarus  v.  Shearrer,  2  Ala.  718 163 

Lea  V.  Bringier,  19  La.  Ann.  197 11 

Leach  V.  Blow,  8  Smedes  &  M.  (Miss.)  221 167 

Leake  v.  Sutherland,  25  Ark.  219 241 

Le  Count  v.  Greenly,  6  N.  Y.  S.  Rep.  91 62 

Lee  V.  Morris,  3  Bush.  (Ky.)  210 76 

Le  Grande  Nat.  Bank  v.  Blum,  27  Ore.  215,  41  Pac.  659 80 

Lehman  v.  Pritchett.  84  Ala.  512,  4  South.  601 227 

Leigh  V.  American  Brake  Beam  Co.,  205  111.  147,  68  N.  E.  713     235 

Leighton  v.  Sargent,  27  N.  H.  460,  59  Am.  Dec.  388 230,  232 

Lemke  v.  Faustman,  124  111.  App.  624 24 

Leman  v.  Little  (S.  D.)  114  N.  W.  1001 253 

Leonard  v.  Poole,  114  N.  Y.  371,  21  N.  E.  707 238 

Lerned  v.  Johns,  9  Allen  (Mass.)  419 172 

Le  Roy  v.  Beard,  8  How.  (U.  S.)  451 130,  148 

Lester  v.  Snyder,  12  Colo.  App.  351,  55  Pac.  613 119 

Le  Toumeaux  v.  Gilliss,  1  Cal.  App.  546,  82  Pac.  627 42,  43,  71 

Leuthold  v.  Fairchild,  35  Minn.  99,  27  N.  W.  503 219 

Levi  V.  Booth,  58  Md.  305,  42  Am.  Rep.  332 146,  201,  202 

Lewis  V.  Amorous,  3  Ga.  App.  50,  59  S.  E.  338 189 

Lewis  V.  Atlas  Ins.  Co.,  61  Mo.  534 254 

Lewis  V.  Bourbon  Co.  Com'rs.,  12  Kan.  186 141 

Lewis  V.  Brehme,  33  Md.  412,  3  Am.  Rep.  190 6,  230 

Lewis  V.  Coxe,  5  Har.  (Del.)  401 30 

Lewis  V.  Ingersoll,  3  Abb.  Dec.  (N.  Y.)  50 33 

Lewis  V.  Kerr,  17  Iowa  73 103 

Lewis  V.  Lewis,  9  Mo.  183,  43  Am.  Dec.  540 29 

Lewis  V.  Sumner,  13  Meta.  ( Mass. )  269 15S 

I^wls  V.  Tilton,  64  Iowa  220,  19  N.  W.  911 13 

Lewis  V.  Trickoy,  20  Barb.  (N.  Y.)  387 245 

Liddell  v.  Sahlino,  55  Ark.  627,  17  S.  W.  705 113,  149 

Liebseher  v.  Kraus,  74  Wis.  387,  43  N.  W.  166 167 

Liggett  V.  Ladd,  17  Ore.  89,  21  Pac.  133 13 


TABLE  OF  CASES   CITED.  297 

References  are  to  pages. 

Lillie  V.  Hoyt,  5  Hill  (N.  Y.)  395,  40  Am.  Dec.  360 241,  242 

Lilly  V.  Waggoner,  27  111.  359 18 

Lincoln  v.  McClatchie,  36  Conn.  136 250 

Lindquist  v.  Dickson,  98  Minn.  369,  107  N.  W.  958 174 

Liness  v.  Hesing,  44  111.  113,  92  Am.  Dec.  153 45 

Lister  v.  Allen,  31  Md.  513,  100  Am.  Dec.  78 135 

Litka  V.  Wilcox,  39  Mich.  94 29 

Livings  v.  Wiler,  32  111.  387 74 

Livingston  v.  Page,  74  Vt.  356,  52  Atl.  965 46 

Lobdell  V.  Baker,  42  Mass.   (1  Mete.)   193,  35  Am.  Dec.  358 

5,  139,  142,  157 

Lobdell  V.  Mason,  71  Miss.  937,  15  South.  44 52 

Loeb  V.  Hellman,  83  N.  Y.  601 6 

Long  V.  Colburn,  11  Mass.  97,  6  Am.  Dec.  160 50 

Long  V.  Hartwell,  34  N.  J.  Law  116 2,  125 

Long  V.  Jennings,  137  Ala.  190,  33  South.  857 122 

Long  V.  Osborn,  91  Iowa  160,  59  N.  W.  14 69 

Long  V.  Thayer,  150  U.  S.  520 103,  104 

Loomis  V.  Ry.  Co.,  159*  Mass.  39,  34  N.  E.  82 181 

Loomis  V.  Simpson,  13  Iowa  532 35,  38,  156 

Lord  V.  Lord,  58  N.  H.  7 31 

Lorie  v.  Railway  Co.,  32  Fed.  270 81 

Lough  V.  Davis,  30  Wash.  204,  70  Pac.  491,  35  Wash.  449,  77 

Pac.  732 117,  221 

Lolk  V.  Woods,  15  111.  256 27 

Louisville,  etc.  Ry.  Co.  v.  Buck,  116  Ind.  566,  19  N.  E.  453..     185 

Louisville  Nat.  Bank  v.  Laveille,  52  Mo.  380 191 

Love  v.  Miller,  53  Ind.  294,  21  Am.  Rep.  192 249 

Lovett,  Hart  &  Phipps  Co.  v.  Sullivan,  189  Mass.  535,  75  N.  E. 

738 138 

Lk)w  v.  Railway  Co.,  45  N.  H.  370 75 

Lowry  v.  Harris,  12  Minn.  255 69 

Luby  V.  Railway  Co.,  17  N.  Y.  131 181 

Lucas  v.  Rader,  29  Ind.  App.  287,  64  N.  E.  488 112,  141 

Luclde  V.  Johnston,  89  Ga.  321,  15  S.  E.  459 115,  141.  147 

Ludwig  v.  Gillispie,  105  N.  Y.  653,  11  N.  E.  835 223 

Lum  V.  McEwen,  56  Minn.  278,  57  N.  W.  662 48 

Lumpkin  V.  Wilson,  5  Heisk.  (Tenn.)  555 148 

Lutz  V.  Linthicum,  8  Pet.  (U.S.)  165... 161 

Lynch  v.  Dodge,  130  Mass.  458 17 

Lynch  v.  Smyth,  25  Colo.  103,  54  Pac.  634 81,  85 


298  TABLE  OF  CASES  CITED. 

References  are  to  pages. 

Lyndeborougli  Glass  Co.  v.  Glass  Co.,  Ill  .Mass.  315 77 

Lynn  v.  Burgoyne,  52  Ky.  400 33 

Lyon  V.  Cnlbertson,  83  III.  33,  25  Am.  Rep.  349 48 

Lyon  V.  Jerome,  26  Wend.   (N.  Y.)  485,  37  Am.  Dec.  271..  11,  33 

Lyon  V.  Kent,  45  Ala.  656 22 

Lyon  V.  Phillips,  106  Pa.  St.  57 18 

Lyon  V.  Pollock,  99  U.  S.  668 55 

Lyon  V.  Thompson,  16  Iowa  62 114 

M. 

Madden  V.  Cheshire  (Kan.)  94  Pac.  793 236 

Maddux  v.  Bevan,  39  Md.  485 80,  158 

Magill  V.  Stoddard,  70  Wis.  75,  35  N.  W.  346 120 

Maier  v.  Randolph,  33  Kan.  340,  6  Pac.  625 4i 

Maitland  v.  Martin,  86  Pa.  St.  120 257 

Malburn  v.  Schreiner,  49  111.  69 60 

Mandeville  v.  Reynolds,  68  N.  Y.  528 158 

Mangum  v.  Ball,  43  Miss.  288,  5  Am.  Rep.  488 245 

Manhattan  Liquor  Co.  v.  Mangus,  43  Tex.  Civ.  App  4G3,  94  S. 

W.   1117 152 

Manley  v.  Headley,  10  Kan.  88 157 

Mann  v.  Chandler,  9  Mass.  335 167,  168 

Mann  v.  Robinson,  19  W.  Va.  49,  42  Am.  Rep.  771 148 

Manning  v.  Keenan,  73  N.  Y.  45 201 

Manser  v.  Back,  6  Hare  443  ( Eng. ) 95 

Maple  V.  Ry.  Co.,  40  Ohio  St.  313,  48  Am.  Rep.  685 174 

Marbourg  v.  Smith,  11  Kan.  554 158 

Marizou  v.  Pioche,  8  Cal.  522 100 

Marquette,  etc,  Ry.  Co.  v.  Taf t,  28  Mich.  289 59 

Marr  v.  Given,  23  Me.  55,  39  Am.  Dec.  600 128 

Mars  V.  Mars,  27  S.  C.  132,  3  S.  E.  60 141 

Marsh  v.  Fairbury,  64  111.  414 47 

Marsh  v.  Fulton  Co.,  10  Wall.  (U.  S.)  676 76 

Marsh  v.  Jeff,  3  F.  &  F.  234   (Eng.) 157 

Marsh  V.  Whitmore,  21  Wall.   (U.S.)  178 232 

Maishall  v.  Haney,  4  Md.  498,  59  Am.  Dec.  92 179 

Marshall  v.  Rugg,  G  Wyo.  270,  44  Pac.  700 52,  54 

Martin  v.   Brown,   75   Ala.   442 119 

Martin  v.  Lemon,  26  Conn.  192 27 

Martin  v.  Smith,  r,',  Miss.  1.  3  South.  33 169 


TABLE  OF  CASES  CITED.  299 

References  are  to  pages. 

Martin  v.  Wade,  37  Cal.  168 46 

Martin  v.  Webb,  110  U.  S.  7 8,  51,  64 

Marvin  v.  Elwood,  11  Paige  (N.  Y.)  365 238 

Marvin  v.  Inglis,  39  How.  Prac.  329 16 

Marvin  v.  Universal  Life  Ins.  Co.,  85  N.  Y.  278,  39  Am.  Rep. 

657   138,  141 

Maryland  Fire  Ins.  v.  Dalrymple,  25  Md.  242,  89  Am,  Dec. 

779 235 

Mason  v.  Waite,  17  Mass.  560 201 

Mason  v.  Walkowich,  80  C.  C  A.  435,  150  Fed.  699 26 

Mason  v.  Whitthorne,  2  Cold.  (Tenn.)  242 241 

Massey  v  Taylor,  5  Cold.  ( Tenn. )  447 253 

Mast.  V.  Easton,  33  Minn.  161,  22  N.  W.  253 241 

Matteson  v.  Blackmer,  46  Mich.  393,  9  N.  W  445 51,  56,  60 

Matthews  v.  Jenkins,  80  Va.  463 212 

Mathiessen  etc.  Refin.  Co.  v.  McMahon,  38  N.  J.  Law  536 

18,  107,    108 

Mattocks  V.  Young,  66  Me.  459 73 

Maxwell  v.  Bay  City  Bridge  Co.,  41  Mich  453 29 

Mayer  v.  Building  Co.,  104  Ala.  611,  16  South.  620 221 

Mayer  v.  Dean,  115  N.  Y.  556,  22  N.  E.  261 191 

Maynard  v.  Fireman's  Fund  Ins.   Co.,   34  Cal.   48,   91  Am.  Dec 

672 40 

Mayor  of  Baltimore  v.  Eschbach,  18  Md.  282 125 

McAlpine  v.  Cassidy,  17  Tex.  449 129,  147 

McArthur  v.  Printing  Co.,  48  Minn.  319,  51  N.  W.  216 75 

McCabe  v.  Goodfellow,  133  N.  Y.  89,  30  N.  E.  728 14 

McClay  v.  Hedge,  18  Iowa  66, 252,  256 

McClellan  v.  Robe,  93  Ind.  298 163 

McClellan  v.  Reynolds,  49  Mo.  312 169 

McClintock  v.  Oil  Co.,  146  Pa.  St.  144,  23  Atl.  211 90 

McClun  V.  McClun,  176  111.  376,  52  N.  E.  928 16- 

McClung  V.  Spotswood,  19  Ala.  165'. 120,  128 

McClure  v.  Herring,  70  Mo.  18,  35  Am.  Rep.  404 160,  163,  164 

McClure  Bros.  v.  Briggs,  58  Vt.  82,  2  Atl.  583 86 

McCollough  Iron  Co.  v.  Carpenter,  67  Md.  554,  11  Atl.  176..     24S 

McConnell  v.  McCormick,  12  Cal.  142 34 

McConnell  v.  Mackin,  22  App.  Div.  537,  48  N.  Y.  Supp.  18. . . .       36 

McCord  V.  Telegraph  Co.,  39  Minn.  181,  39  N.  W.  315 193 

McCormick  v.  Joseph,  83  Ala.  401,  3  South.  796 185 

McCormick  v.  Kelly,  28  Minn.  135,  9  N.  W.  675 133 


300  TABL.E  OF  CASES  CITED. 

References  are  to  pages. 

McC'ormick  v.  Wheeler,  36  111.  114,  85  Am.  Dec.  388 186 

McCracken  v.  San  Francisco,  16  Cal.  591 70 

McCrary  v.  Ruddick,  33  Iowa  521 56,  246,  247 

McCready  v.  Thorn,  51  N.  Y.  454 58 

McCreary  V.  McCorkle  (Tenn.),  54  S.  W.  53 30 

McCrosky  v.  Hamilton,  108  Ga.  640,  34  S.  E.  Ill 4 

McCune  v.  Badger.  126  Wis.  186,  105  N.  W.  667 112 

McDonald  v.  Band,  195  111.  122,  62  N.  E.  881 212 

McDonald  V.  McCoy,  121  Cal.  55,  53  Pac.  421 73,  88 

McDonald  v.    Buckstaff,  56  Neb.  88,  76  N.  W.  476 42 

McDonnell  v.  Rigney,  108  Mich.  276,  66  N.  W.  52 47 

McDonough  v.  Heyman,  38  Mich.  334 54 

McFarland  v.  Heim,  127  Mo.  327,  29  S.  W.  1030 70,  76 

McFarland  v.  McClees   (Pa.  St.),  5  Atl.  50 231 

McFarland  v.  Wheeler,  26  Wend.  (N.  Y.)  467 260 

McGoldrick  v.  Willitts,  52  N.  Y.  612 69 

McGraf  t  v.  Rugee,  60  Wis.  406,  19  N.  W.  530 259 

McGriff  V.  Porter,  5  Fla.  373 105 

McHany  v.  Schenk,  88  111.  357 150 

McHenry  v.  Ridgley,  2  Scam.  (111.),  309,  35  Am.  Dec.  110. .. .  171 

Mcllwaine,  In  re,  18  N.  J.  Eq.  499 30 

Mclntyre  v.  Park,  11  Gray  (Mass)  102,  71  Am.  Dec.  690....  78 

Mclver  v.  Clark,  69  Miss.  408,  10  South.  581 26 

McKay  v.  Williams,  67  Mich.  547,  35  N.  W.  159 235 

McKee  v.  Cunningham,  2  Cal.  App.  684,  84  Pac.  260 J . . .  174 

McKeighan  v.  Hopkins,  19  Neb.  33,  26  N.  W.  614 86 

McKenzie  v.  British  Linen  Co.,  6  App.  Cas  (Eng)  82 74 

McKenzie  v.  Nebins,  22  Me.  138,  38  Am.  Dec.  291 200 

McKinnon  v.  VoUmar,  75  Wis.  82,  43  N.  W.  800 34 

McLachlin  v.  Brett,  105  N.  Y.  391,  12  N.  E.  17 200 

McLaren  v.  Hall,  26  Iowa  297 19 

McLaughlin  v.  Wheeler,  1  S.  D.  497,  47  N.  W.  816 121 

McLeod  V.  Despain,  49  Ore.  536,  92  Pac.  1088 .' 86 

McLearn  v.  McNamara,  55  Cal.  508 158 

McMahan  v.  Burns,  216  Pa.  St.  448,  65  Atl.  806 95,  101 

McMahon  v.  Sloan,  12  Pa.  St.  229,  51  Am.  Dec.  206 203 

McMechen  v.  McMechcn,  17  W.  Va.  683,  41  Am.  Rep.  682 29 

McMinn  v.  Richtmeyer,  3  Hill  (N.  Y.)  236 131 

McNamara  v.  McNamara,  62  Ga.  200 61,  115 

McNeil  V.  Chamber  oC  Commerce,  154  Mass.  277,  28  N.  E.  245  27 


TABLE  OF  CASES  CITED.  301 

References  are  to  pages. 

McNeil  V.  Tenth  Nat.  Bank,  46  N.  Y.  325.  7  -Am.  Rep.  341 

146,  202,  203 

McNeily  v  Ins.  Co.,  66  N.  Y.  23 99 

McNevins  v.  Lowe,  40  111.  209 233 

McPherrin  v.  Jenings,  66  Iowa  622,  24  N.  W.  242 179,  260 

McPheters  v.  Page,  83  Me.  234,  22  Atl.  101 219 

McWilliams  v.  Detroit  Mills,  31  Mich.  275 23 

Mead  Plumbing  Co.  v.  Irwin,  77  Neb.  358,  109  N.  W.  391 211 

Meader  v.  Page,  39  Vt.  306 50 

Means  v.  Swormstedt,  32  Ind.  87,  2  Am.  Rep.  330 167 

Mechanics  Bank  v.  New  York  etc.  Ry.  Co.,  13  N.  Y.  632 140 

Mechanics  Bank  v.  Bank,  5  Wheat.  (U.  S.)  326 16S 

Mechanics  &  T.  Bank  v.  Bank,  60  N.  Y.  40 224 

Meinhardt  v.  Newman,  71  Neb  532,  99  N.  W.  261 103 

Melchoir  v.  McCarty,  31  Wis.  252 71 

Menkens  v.  Watson,  27  Mo.  163 91 

Merchants  Bank  v.  Bank,  1  Ga.  418,  44  Am.  Dec.  665 152 

Merchants  Nat.  Bank  v.  Bank,  10  Wall  (U.  S)  604 154 

Merchants  Nat.  Bank  v.  Goodman,  109  Pa.  St.  422,  2  Atl.  687, .  243 

Merchants  Nat.  Bank  v.  Nichols.  223  111.  41,  79  N.  E.  38 186 

Merrick  v.  Wagner,  44  111.  266 151 

Mericks  Estate  in  re,  8  Watts  &  Serg.  (Pa.)  402 104 

Merrill  v.  Kenyon,  48  Conn.  314,  40  Am.  Rep.  174 173,  174 

Merrell  v.  Wilson,  66  Mich.  232,  33  N.  W.  716 80 

Merrwin  v.  Lewis,  90  111.  505 104 

Merry  v.  Lynch,  68  Me.  94 107 

Merryman  v.  David,  31  111.  404 329 

Metcalf  V.  Williams,  104  U.  S.  93 170,  214 

Meyer  v.  Hanchett,  43  Wis.  246 25 

Meyers  v.  Ins.  Co.,  104  Cal.  381,  38  Pac.  82 180 

Meyer  y.  King,  29  La.  Ann.  567 53 

Michael  v.  Jones,  84  Mo.  578 216 

Michoud  V.  Girod',  4  How.  (U.  S.)  503 235 

Miles  V.  Ogden,  54  Wis.  573,  12  N.  W.  81 80 

Miles  V.  Thorne,  38  Cal.  335,  99  Am.  Dec.  384 44 

Milford  V.  Water  Co.,  124  Pa.  St.  610,  17  Atl.  185 71 

Mill  V.  Hawker,  L.  R.  10  Ex.  92  (Eng.) 219 

Millar  v.  Cuddy,  43  Mich.  273,  5  N.  W.  316 57,  247 

Millard  v.  Smith,  119  Mo.  App.  701,  95  S.  W.  940 190 

Miller  v.  Goodard,  24  Me.  102,  56  Am.  Dec.  638 250,  254 

Miller  v.  Lea,  35  Me.  396,  6  Am.  Dec.  417 20O 


502  TABLE  OP  CASES  CITED. 

References  are  to  pages. 

Miller  v.  Smith,  112  Mass.  470 248 

Miller  v.  Stone  Co.,  1  111.  App.  273 81 

Miller  v.  Way,  5  S.  D.  468,  59  N  W.  467 169 

Milliken  v.  Coombs,  1  Greenl.  (Me.)  343,  10  Am.  Dec.  70 78 

Milligan  v.  Davis,  49  Iowa  126 69 

Mills  V.  Berla  (Tex.  Civ.  App.),  23  S.  W.  910 79 

Mills  V.  Mills,  40  N.  Y.  543,  100  Am.  Dec.  535 43 

Mills  V.  Smith,  193  Mass.  11,  78  N.  E.  765 102 

Milne  v.  Kleb,  44  N.  J.  Eq.  378,  14  Atl.  646 143 

Milwaukee  etc.  Inv.  Co.  v.  Johnston,  35  Neb.  554,  53  N.  W. 

475 132 

Minn.  Lin.  Oil  Co.  v.  Montague,  59  Iowa  448,  13  N.  W.  438 

117,  123,  230 

Minn.  Stoneware  Co.  v.  McCrossen,  110  Wis.  316,  85  N.  W. 

1019 .■ 120 

Minturn  v.  Main,  7  N.  Y.  220 223 

Missouri  Pac.  Ry.  Co.  v.  Stults,  31  Kan.  752,  3  Pac  522 180 

Mitchell  V.  Finnell,  101  Cal.  614,  36  Pac.  123 179 

Mitchell  V.  Georgia  &  A.  Ry.,  Ill  Ga.  760,  36  S.  E.  971 4 

Mitchell  V.  Minnesota  Fire  Assn.,  48  Minn.  278,  51  N.  W.  608  75 

Moffet  V.  Moffet,  90  Iowa  442,  57  N.  W.  954 . , 114 

Mohr  V.  Miessen,  47  Minn.  228,  49  N.  W.  862 41,  259 

Moir  V.  Hopkins,  16  111.  313,  63  Am.  Dec.  312 40,  41 

Monson  v.  Kill,  144  111.  248,  33  N.  E.  43 128 

Montague  v.  McCarroll,  15  Utah  318,  49  Pac.  418 100 

Montgomery  v.  Hundley,  205  Mo.  138,  103  S.  W.  527 25 

Montgomery  v.  U.  S.,  15  Wall.  (U.  S.)  395 109 

Mooney  v.  Elder,  56  N.  Y.  238 249 

Moore  v.  Appleton,  26  Ala.  633 258,  259 

Moore  V.  Hall,  48  Mich.  143,  11  N.  W.  844 105,  131,  151 

Moore  V.  Metropolitan  Bank,  55  N.  Y.  41,  14  Am.  Rep.  173..  203 

Moore  v.  Shields,  121  Ind.  2G7,  23  N.  E.  89 218 

Moore  v.  Stone,  40  Iowa  259 94 

Moore  v.    Thompson,  32  Me.  477 124 

Moore  v.  Ticlile,  14  N.  C.  244 4 

Moore  v.  Vulcanite  Cement  Co.,  106  N.  Y.  Supp.  393 198 

Moors  V.  Kidder,  106  N.  Y.  32,  12  N.  E.  818 262 

Moran  v.  Dunphy,  177  Mass.  485,  59  N.  E.  125 224 

Morehouse  v.  Northrup,  33  Conn.  380.  89  Am.  Dec.  211 40,  72 

Morcland  v.  Houghton.  94  Mich.  548,  54  N.  W.  285 55 


TABLE  OP  CASES  CITED.  303 

References  are  to  pages. 

Morgan  v.  Aldrich,  114  Mo.  App.  700,  91  S.  W.  1024 239 

Morgan  v.  Hardy,  16  Neb.  427 25 

Morgan  v.  Richardson,  13  Allen   (Mass.)   410 231 

Morris  v.  Barnes,  35  Mo.  412 246 

Morris  v.  Bowen,  52  N.  H.  416 133,  152 

Morrison  v.  Hazard  (Tex.  Civ.  App. ) ,  88  S.  W.  385 217 

Morrison    v.  Holt,  42  N.  H.  478,  80  Am.  Dec.  120 62 

Morrison  v.  Rogers,  115  C'al.  252,  46  Pac.  1072 48 

Morrow  v.  Higgings,  29  Ala.  448 52,  125 

Morrow  v.  Tunkhannock  Ice  Co.,  211  Pa.  St,  445,  60  Atl.  1004  249 

Morse  v.  Diebold,  2  Mo.  App.  163 81,  115 

Morse  v.  Railway  Co.,  6  Gray  (Mass.)  450 179 

Morse  v.  State,  6  Conn.  9 73,  193 

Morton  v,  J.  I.  Case  Macli.  Co.,  99  Mo.  App.  630,  77  S.  W. 

434 250 

Morton  v.    Rainey,  82  111.  215,  25  Am.  Rep.  311 246 

Morton  v.  Skull,  23  Ark.  289 140 

Mott  V.  Hicks,  1  Cow.  (N.  Y.)  513,  13  Am.  Dec.  550 168 

Mott  V.  Smith,  16  Cal  533 30 

Moulton  V.  Bowker,  115  Mass.  36,  15  Am.  Rep.  72 157,  158 

Mount  Morris  Bank  v.  Gorhan,  169  Mass.  519,  48  N.  E.  341. .  64 

Mowatt  V.  McLean,  1  Wend.  (N.  Y.)  173 217 

Moyer  v.  Cantieuy,  41  Minn.  242,  42  N.  W.  1060 47 

Mueller  v.  Bethesda  Springs  Co.,  88  Mich.  390,  50  N.  W.  319. .  67 

Mullanphy  Bank  v.  Shott,  135  111.  655,  26  N.  E.  640 112 

Mullen,  In  re,  110  Cal.  252,  42  Pac.  645 29 

Muller  V.  Pondir,  55  N.  Y.  325,  14  Am.  Rep.  259 261 

Mulligan  v.  Railway  Co.,  129  N.  Y.  506,  29  N.  E.  952 190 

Mulligan  v.  Smith,  32  Colo.  404,  76  Pac.  1063 47 

Mulvehill  v.  Bates,  31  Minn.  364,  17  N.  W.  959 188 

Mundorff  v.  Wickersham,  63  Pa.  St.  87,  3  Am.  Rep.  531 196 

Munroe  v.  Fette,  1  Cal.  App.  333,  82  Pac.  206 85 

Murdock  v.  Millner,  84  Mo.  96 237 

Murray  V.    Haverty,  70  111.  318 12 

Murray  v.  Lumber  Co.,  143  Mass.  250,  9  N.  E.  634 86 

Murray  v.  Mann,  2  Ex.  538  (Eng.) 238 

Murray  v.  Usher,  117  N.  Y.  542,  23  N.  E.  564 220 

Murray  v.  Vanderbilt,  39  Barb.    (N.  Y.)   140 238 

Murrel  v.  Jones,  40  Miss.  565 71 

Muscott  V.  Stubbs,  24  Kan.  520 246 


304  TABl^E  OP  CASES  CITED. 

References  are  to  pages. 

Mussenden  V.  RaifEe,  131  111.  App.  456 173 

Mussey  v.  Scott,  7  Cush.  (Mass.)  216,  54  Am.  Dec.  719..  162,  164 

Muth  V.  Goddard,  28  Mont.  237  72  Pac.  621 122 

N. 

Naltner  v.  Dolan,  108  Ind.  500,  8  N.  E.  298 241 

Nash  V.  Kerr  Murray  Mfg.  Co.,  19  Mo.  App.  1 45 

Nash  V.  Mitchell,  71  N.  Y.  199,  27  Am.  Rep.  38 19 

Nash  V.  Mosher,  19  Wend.  (N.  Y.)  431 261 

Nat.  Bank  v.  Merchants  Nat.  Bank,  91  U.  S.  92 123 

Nat.  Bank  of  Commerce  v.  Railway,  44  Minn.  224,  46  N.  W. 

342 191 

Nat.  Bldg.  Assn.  v.  Quinn,  120  Ga.  358,  47  S.  E.  962 179 

Nat.  Fence  Mach,  Co.  v.  Highleyman,  71  Kan.  347,  30  Pac. 

568 150 

NaL  Iron  Armor  Co.  v.  Bruner,  19  N.  J.  Eq.  331 141 

Nat.  S.  S.  Co.  V.  Sheahan,  122  N.  Y.  461,  25  N.  E.  858 3S 

Neal  V.  Patten,  40  Ga.  363 120 

Neibles  v.  Railway  Co.,  37  Minn.  151,  33  N.  W.  322 56,  59,  61 

Nelson  v.  Cook,  17  Iowa  443 258 

Nelson  v.  McDonald,  80  Wis.  605,  50  N.  W.  893 53 

Neufeld  v.  Beidler,  37  111.  App.  34 213 

Nevan  v.  Roup,  8  Iowa  207 261 

Newell  V.  Borden,  128  Mass.  31 13 

Newell  V.  Smith,  49  Vt.  225 32,  34 

Newhall  v.  Vargas,  13  Me.  93,  29  Am.  Dec.  489 262 

Newman  v.  Greeff,  101  N.  Y.  663,  5  N.  E.  335 169 

Newman  v.  Lee,  87  App.  Div.  116,  84  N.  Y.  Supp.  106 139 

Newman  v.  Sylvester.  42  Ind.  106 216 

Newmarket  Sav.  Bank  v.  Gillett,  100  111.  254,  39  Am.  Rep.  39  167 

New  York  Central  Ins.  Co.  v.  Ins.  Co.,  14  N.  Y.  85 206,  235 

New  York  Central  Ry.  Co.  v.  Lockwood,  17  Wall.  (U.  S.)  357  233 

New  York  etc.  Ry.  Co.  v.  Schuyler,  34  N.  Y.  30 192,  193 

New  York  Iron  Mine  Co.  v.  Bank,  44  Mich.  344,  6  N.  W.  823. .  152 

New  York  Life  Ins.  Co.  v.  Davis,  95  U.  S.  425 18,  109 

Niber  v.  Baghurst,  47  N.  J.  Eq.  20 1,  20  All.  252 71 

Nichols  V.  Frotliingliam,  45  Mo.  220,  71  Am.  Dec.  539 214 

Nichols  V.  So.  Pac.  Ry.  Co.,  23  Ore.  123 179 

Nicholson  v.  Doney,  37  111.  App.  531 80 


TABLE  OF  CASES  CITED,  305 
References  are  to  pages. 

Nielsen  v.  Northwestern  Siberian  Co.,  40  Wash.  194,  82  Pac. 

292 130 

Nims  V.  Mt.  Herron  School.  160  Mass.  177,  35  N.  E.  776 72 

Nixon  V.  Brown,  57  N.  H.  34 146,  203,  204 

Nixon  V.  Palmer,  8  N.  Y.  398 152 

Noe  V.  Christie,  51  N.  Y.  270 12 

Noel  V.  Drake,  28  Kan.  265,  42  Am.  Rep.  162 47 

Noel  Const.  Co.  v.  Atlas  Cement  Co.,  103  Md.  209,  63  Atl. 

384 197 

Norfolk  &  W.  Ry.  Co.  v.  Cottrell,  S3  Va.  512,  3  S.  E.  123 8 

Norris  v.  Hero,  22  La.  Ann.  605 241 

Norris  v.  Lantz,  18  Md.  260 19 

North  Carolina  Ins.  Co.  v.  Williams,  91  N.  C.  69,  49  Am.  Rep. 

637 249 

North  Hudson  Ry.  Co.  v.  May,  48  N.  J.  Law  401,  5  Atl.  276 180 

North  V.  Metz,  57  Mich.  612,  24  N.  W.  759 112 

North  River  Bank  v.  Aymar,  3  Hill  (N.  Y)  262 123 

Northwest  Thresher  Co.  v.  Eddyville,  80  Neb.  377,  114  N.  W. 

291 118 

Northwestern  Dist.  Co.  v.  Brant,  69  111.  658,  10  Am.  Rep.  631  162 

Northwestern  Packet  Co.  v.  Clough,  20  Wall.  (U.  S.)  528 182 

Norton  v.  Ala.  Nat.  Bank,  102  Ala.  420,  14  South.  872 87 

Norton  v.  Blinn,  39  Ohio  St.  145 238 

Norwick  Univ.  v.  Denny,  47  Vt.  13 34 

Noyes  v.  Landon,  59  Vt.  569,  10  Atl.  342 237 

Noyes  v.  Loring,  55  Me.  408 215,  216 

Nutt  V.  Knut,  200  U.  S.  13,  26  Sup.  Ct.  216 44 

Nye  V.  Lowry,  82  Ind.  316 73 

O. 

Oakes  v.  Water  Co.,  143  N.  Y.  430,  38  N.  E.  461 75 

O'Barr  v.  Alexander,  37  Ga.  195 232 

Oberne  v.  Burke,  30  Neb.  581,  46  N.  W.  838 135,  140 

O'Connor  v.  Clapton,  60  Miss.  349 217 

Ohio  etc.  Ry.  Co.  v.  Stein,  133  Ind.  243,  31  N.  E.  180 183 

Ohio  Nat.  Bank  v.  Cook,  38  Ohio  St.  442 213 

Olcott  V.  Tioga  Ry.  Co.,  27  N.  Y.  546,  84  Am.  Dec.  298 168 

O'Leary  v.  German  American  Ins.  Co.,  100  Iowa  390,  69  N.  W. 

686 115 

Olyphant  v.  McNair,  41  Barb  (N.  Y.)  446) 149 

20 


306  TABLE  OF  CASES  CITED. 

References  are  to  pages. 

Opinion  of  Judges,  41  N.  H.  550 29 

Oregon  Mortgage  Co.  v.  American  Mortgage  Co.,  35  Fed.  22. .       93 

Oregon  Ry.  Co.  v.  Oregon  R.  &  Nav.  Co.,  28  Fed.  505 79 

Ormerod  v.  Dearman,  100  Pa.  St.  561,  45  Am.  Rep.  391 47 

Ormsby  v.  Graham,  123  Iowa  202,  98  N.  W.  724 148,  150 

Ortmeier  v.  Ivory,  208  111.  577,  70  N.  E.  665 150 

Orvis  V.  Wells  Fargo  Co.,  19  C.  C.  A.  382,  73  Fed.  110 80 

Osborne  v.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437 221 

Oscanyan  v.  Arms  Co.,  103  U.  S.  261 41,  45 

Oster  V.  Mieckley,  35  Minn.  245 133 

Over  V.  Schifflin,  102  Ind.  191,  26  N.  E.  91 179 

Overman  v.  Atkinson,  102  Ga.  750,  29  S.  E.  758 51 

Owen  v.  Brockschmidt,  54  Mo.  285 149 

Owens  V.  Wilkinson,  20  App.  Dec.  51 43,  44 

Owensboro  Wagon  Co.  v.  Boling,  32  Ky.  Law  Rep.  816,  107  S. 

W.  264 188 

Owings  V.  Hull,  9  Pet.  (U.  S.)  607 84,  118 

Owsley  V.  Philips,  78  Ky.  517,  39  Am.  Rep.  258 73 

P. 

Pacific  Biscuit  Co.  v.  Dugger,  40  Ore.  362,  67  Pac.  32 6 

Pacific  Lumber  Co.  v.  Wilson,  6  Cal.  App.  561,  92  Pac.  654...  185 

Pack  V.  White,  78  Ky.  243 165 

Packer  v.  Hinckley  Loco.  Works,  122  Mass.  484 98 

Padfeld  V.  Green,  85  111.  529 150 

Padley  v.  Neill,  134  Mo.  364,  35  S.  W.  997 142 

Page  V.  Wells,  37  Mich.  415 230 

Paige  V.  Stone,  10  Mete.  (Mass)  160,  43  Am.  Dec.  420 151 

Palacios  v.  Brasher,  18  Colo.  593,  34  Pac.  251 54 

Palmer  v.  Haverhill,  98  Masp.  483 247 

Palmeri  v.  Railway  Co.,  133  N.  Y.  261,  30  N.  E.  1001 40,  189 

ParccU  V.  McComber,  11  Neb.  209,  7  N.  W.  529 252,  256 

Parker  V.  Brancker,  22  Pick  (Mass.)  40 230,262 

Parker  V.  Walker,  86  Tcnn.  566,  8  S.  W.  391 7 

Parks  V.  L.  &  S.  Turnpike  Road  Co.,  27  Ky.  456 164 

Parks  V.  Ross,  11  How.  (U.  S.)  362 ri4 

Parmele  V.  Simpson,  5  Wall.  (U.S.)  81 8S 

Paton  V.  Baker,  62  Iowa  704 12 

Patrick  v.  Llttrell,  36  Ohio  St.  79 49 

Patterson  v.  Gage,  22  Vt.  558,  56  Am.  Dec.  96 254 


TABLE  OF  CASES  CITED.  307 

References  are  to  pages. 

Patterson  v.  Leavitt,  4  Conn.  50, 10  Am.  Dec.  98 26 

Patterson  v.  Lippincott,  47  N.  J.  Law  457,  1  Atl.  506 215,  216 

Patterson  v.  Suffolk  Mfg.  Co.,  106  Mass.  56 254 

Patterson  v.  Van  Loon,  186  Pa.  St  367,  40  Atl.  495 115 

Paul  V.  Grimm,  165  Pa.  St.  139,  30  Atl.  721 228 

Payne  v.  Potter,  9  Iowa  549 147 

Paxton  Cattle  Co.  v.  Bank,  21  Neb.  621,  33  N.  W.  271 75 

Peabody  v.  Hoard,  40  111.  242 51 

Pearson  v.  Anderberg,  28  Utah  495,  80  Pac.  307 13 

Pease  v.  Pease,  35  Conn.  131,  95  Am.  Dec.  225 222 

Pease  v.  Warren,  29  Mich.  9 62 

Peck  V.  Ritchey,  66  Mo.  114 112 

Peckham  v.  Lyon,  4  McLean  (U.  S.)  45 149 

Pegram  v.  Charotte,  etc.  Ry.  Co.,  84  N.  C.  696,  37  Am.  Rep 

639 24 

Penfold  V.  Warner,  96  Mich.  179,  55  N.  W.  680 121,  127 

Penn.  Ir.  Wks.  v.  H.  Voght  Mach.  Co.,  29  Ky.  Law  Rep.  861, 

96  S.  W.  551 72,  198 

Pentz  V.  Stanton,  10  Wend.    (N.  Y.)   271,  35  Am.  Dec.  558 

165,  174,  222 

People  V.  Lyon,  99  N.  Y.  210 193 

People  V.  Manistee  Co.  Com'rs.,  40  Mich.  585 93 

People  V,  Nichols,  52  N.  Y.  478,  11  Am.  Rep.  734 27 

People  V.  Parks,  49  Mich.  333 194 

People  V.  Roby,  52  Mich.  577,  18  N.  W.  365 40 

People  V.  Township  Board,  11  Mich.  222 235 

Peoples  Bank  v.  Scalzo,  127  Mo.  164,  29  S.  W.  1032 54 

Perkins  v.  Evans,  61  Iowa  35,  15  N.  W.  584 206 

Perkins  v.  Hunington,  19  N.  Y.  Supp.  71,  64  Hun.    (N.  Y.) 

635 61 

Perkins  v.  Stebbins,  29  Barb.  (N.  Y)  523 112 

Perminter  v.  Kelly,  18  Ala.  710,  54  Am.  Dec.  177 12 

Perrine  in  re,  41  N.  J.  Eq.  409,  5  Atl.  579 16 

Perry  v.  Smith,  29  N.  J.  Law  74 142 

Person  v.  Carter,  7  N.  C.  321 8 

Person  V.  Warren,  14  Barb.   (N.  Y.)   488 .' 17 

Persons  v.  McKibben,  5  Ind.  261,  61  Am.  Dec.  85 89 

Peters  v.  Farnsworth,  15  Vt.  155,  40  Am.  Dec.  671 128,  148 

Peterson  v.  Christensen,  26  Minn.  377,  4  N.  W.  623 32 

Peterson  v.  Homan,  44  Minn.  166,  46  N.  W.  303 212 

Peterson  v.  Mayer,  46  Minn.  468,  49  N.  W.  245 255 


308  TABLE  OF  CASES  CITED. 

References  are  to  pages. 

Peto  V.  Hague,  5  Esp.  134 181 

Pfister  V.  Wade,  69  Cal.  133,  10  Pac.  369 15S 

Phelps  V.  James,  86  Iowa  398,  53  N.  W.  274 181 

Phelps  V.  Sullivan,  140  Mass.  36,  2  N.  E.  121 53 

Phila.  etc.  Ry.  Co.  v.  Cowell,  28  Pa.  St.  329,  70  Am.  Dec. 

128 83 

Phillips  Buttoroff  Mfg.  Co  v.     Wild  Bros.,  144  Ala.  545,  39 

South.  359 85 

Phillips  V.  Dobbins,  56  Ga.  617 158 

Phillips  V.  Howell,  60  Ga.  411 95 

Phillips  V.     Moir,  69  111.  155 231 

Philpot  V.  Bringham,  55  Ala.  435 76 

Philpot  V.  Sandwich  Mfg.  Co.,  18  Neb.  54,  24  S.  W.  428 19 

Phoenix  Ins.  Co.  v.  Frissell,  142  Mass.  513,  8  N.  E.  348 227 

Physio-Medical  Col.  v.  Wilkinson,  108  Ind.  314,  9  N.  E.  167..  17 

Pickard  v.  Perley,  45  N.  H.  188,  86  Am.  Dec.  153 88 

Pickering  v.  Busk,  15  East  (Eng.)  38 146,  202 

Pickert  v.  Marston,  68  Wis.  465,  32  N.  W.  550 132,  133,  147,  15G 

Pickett  V.  Pearson,  17  Vt.  470 91,  229 

Pickney  v.  Dunn,  2  S.  C.  314 241 

Pierce  v.  Railway  Co.,  173  U.  S.  1 251 

Pike  V.  Balch,  38  Me.  302,  61  Am.  Dec.  248 58 

Pinkham  v.  Crocker,  77  Me.  563 155 

Pitkin  V.  Harris,  69  Mich.  133,  37  N.  W.  61 228 

Pitts  V.  Mower,  18  Me.  361,  36  Am.  Dec.  727 197 

Pittsburg  Glass  Co.  v.  Roquemore   (Tex.  Civ.  App.),  88  S. 

W.  449 210 

Pitsinosky  v.  Beardsley,  37  Iowa  9 13-3 

Plumb  V.  Curtis,  66  Conn.  154,  33  Atl.  998 115 

Pollock  V.  Cohen,  32  Ohio  St.  514 87,  120,  121 

Pollock  V.  Gantt,  69  Ala.  373,  44  Am.  Rep.  519 82 

Porter  v.  Hermann,  8  Cal.  619 S 

Porter  v.  Jones,  52  Mo.  399 48 

Porter  v.  Silvers,  35  Ind.  295 253 

Posnor  V.  Bayless,  59  Md.  56 128 

Post  V.  Pearson,  108  U.  S.  418 211 

Potulni  V.  Saunders,  37  Minn.  517,  35  N.  W.  379 188 

Powell  V.  Trustees,  19  Johns.   (N.  Y.)   284 257 

Powell's  Ad'mr.  v.  Henry,  27  Ala.  612 81 

Power  V.  Bank,  6  Mont.  251, 12  Pac.  597 3:> 

Powers  V.  BriRgs.  79  111.  493,  22  Am.  Rep.  175 1^5 


TABLE  OF  CASES   CITED,  309 

References  are  to  pages. 

Powers  V.  Skinner,  34  Vt.  274,  80  Am.  Dec.  677 43,  49 

Prather  v.  Ross,  17  Ind.  459 160 

Pratt  V.  Beaupre,  13  Minn.  1S7 161 

Pratt  V.  Davis,  118  111.  App.  161 62 

Pratt  V.  Reed,  19  How.  (U.  S.)  359 58 

Preston  v.  Hull,  23  Gratt.   (Va.)   600,  14  Am.  Rep.  153 53 

Price  V.  Seydel,  46  Iowa  696 116 

Prichard  v.  Abbott,  104  Md.  560,  65  Atl.  421 24 

Pringle  v.  Modern  Woodmen  of  Amer.,  76  Neb.  384,  107  N. 

W.  756 185 

Proctor  V.  Ry.  Co.,  154  Mass.  251,  28  N.  E.  13 179 

Prov.  Mach.  Co.  v.  Browning,  72  S.  C.  424,  52  S.  E.  117 130 

Providence  Tool  Co.  v.  Norris,  69  U.  S.  (2  Wall.)  45 45,  46 

Provost  V.  Hai  wood,  29  Vt.  219 254 

Pulver  V.  Burke.  56  Barb.  (N.  Y.)  39 172 

Putnam  v.  French,  53  Vt.  402,  38  Am.  Rep.  682 

135,  146,  147,  155,  156 

Q 

Quay  V.  Preside  etc.  Ry.  Co.,  82  Cal.  1,  22  Pac.  925 122 

Quigley  v.  DeHaas,  82  Pa.  St.  267 161 

Quinlan  v.  Insurance  Co.,  133  N.  Y.  356,  31  N.  E.  31 141 

Quinn  v.  Dresbach,  75  Cal.  159,  16  Pac.  762 51,  60,  150 

Quirk  V.  Quirk,  155  Fed.  199 240 

R. 

Rabeneau,  In  re,  118  Fed.  471 7 

Rail  v.  City  Nat.  Bank,  3  Tex.  Civ.  App.  557,  22  S.  W.  865. .  142 

Ry  Co.  V.  Hackett,  58  Ark.  381,  24  S.  W.  881 188 

Rahm  v.  Dieg,  121  Ind.  283 181 

Ramage  v.  Wilson,  37  Ind.  App.  532,  77  N.  E.  368 55 

Randall  v.  Kehlor,  60  Me.  37,  11  Am.  Rep.  169 147,  155 

Randall  v.  Lautenberger,  16  R.  I.  159,  13  Atl.  100 8 

Randall  v.  Northwestern  Tel.  Co.,  54  Wis.  140,  41  Am.  Rep. 

17 181 

Randlette  v.  Judkin,  77  Me.  114 72 

Randolph  v.  Wheeler,  182  Mo.  145,  81  S.  W.  419 172 

Ranger  v.  Thalman,  178  N.  Y.  574,  70  N.  B.  1108 165 

Rankin  v.  Eakin.  3  Head.  (Tenn )  229 121 


310  TABLE  OP  CASES  CITED. 

References  are  to  pages. 

Rathbone  v.  Tucker  15  Wend.  (N.  Y.)  498 176 

Rathburn  v.  Snow,  123  N.  Y.  343,  25  N.  E.  379 135 

Rawlings  v.  Neal,  126  N.  C.  271,  35  S.  E.  597 77 

Rawson  v.  Curtis,  19  111.  456 141 

Ray  V.  Bowers,  134  Mass.  22 14 

Raymond  v.  Crown  &  Eagle  Mills,  2  Mete.  (Mass.)  319...  173,  174 

Rayner  v.  Grote,  15  M.  &  W.  359  (Eng.) 224 

Rea  V.  Bishop,  41  Neb.  202,  59  N.  W.  555 17 

Reab  v.  Moor  19  Johns.   (N.  Y.)   337 255 

Ream  v.  McEhone,  50  Kan.  409,  31  Pac.  1075 114 

Rectsherd  v.  Bank,  47  Mo.  181 226 

Reed  v.  Johnson,  27  Wash.  42,  67  Pac.  381 42 

Reed  v.  Northrup,  50  Mich.  442,  15  N.  W.  543 231 

Reed  y.  Seymour,  24  Minn.  273 124 

Reed  v.  Van  Cleve,  27  N.  J.  Law  352,  72  Am.  Dec.  369 119 

Reese  v.  Medlock,  27  Tex.  120,  84  Am.  Dec.  611 122,  141 

Reeves  v.  Bruening,  13  N.  D.  157,  100  N.  W.  241 113 

Reeves  &  Co.  v.  Watkins,  28  Ky.  Law  Rep.  401,  89  S.  W. 

266 250 

Reg.  V.  Stevens,  L.  R.  1  Q.  B.  702    (Eng.) 194 

Reid  V.  Alaska  Packing  Co.,  47  Ore.  215,  83  Pac.  139 81,  142 

Reid  V.  Hibbard,  6  Wis.  175 118 

Reilly  v.  Phillips,  4  S.  D.  604,  57  N.  W.  870 105 

Reiman  v.  Hamilton,  111  Mass.  245 11 

Remelee  v.  Hall,  31  Vt.  582,  76  Am.  Dec.  140 251 

Renwick  v.  Bancroft,  56  Iowa  527,  9  N.  W.  367 34 

Reynolds  v.  Chi.  etc.  Ry.  Co.,  114  Mo.  App.  670,  90  S.  W.  100  135 

Reynolds  v.  Collins,  78  Ala.  94 59 

Reynolds  v.  Davidson,  34  Md.  662 80' 

Rhodes  v.  Neal,  64  Ga.  704,  37  Am.  Rep.  93 47 

Rhone  v.  Powell,  20  Colo.  41,  30  Pac.  899 212 

Rice  &  Bullen  Malting  Co.  v.  Bank,  185  111.  422.  56  N.  E. 

1063 199 

Rice  V.  Groffman,  56  Mo.  434 155 

Rice  V.  Peninsular  Club,  52  Mich.  87,  17  N.  W.  708 14 

Rice  V.  Post,  78  Hun.  (N.  Y.)  547,  29  N.  Y.  Supp.  553 38 

Rice  V.  Wood,  113  Mass.  133,  18  Am.  Rep.  459 25,  41 

Rich  V.  Black,  173  Pa.  St.  92,  33  Atl   880 25 

Richardson  v.  Eagle  Mach.  Wks.,  78   Ind.  422,  41  Am.  Rep 

584 251 

Richardson  v.  Kimball,  28  Me.  4G3 91 


TABLE  OF  CASES  CITED.  311 

References  are  to  pages. 

Richardson  v.  Scott's  Bluff  Co.,  59  Neb.  400,  81  N.  W.  309. ...  43 

Richey  V.  Brown,  58  Mich.  43G,  25  N.  W.  386 12 

Richmond  v.  Judy,  6  Mo.  App.  465 16 

Richmond  Trading  Co.  v.  Farquar,  2  Blackf.  (Ind.)   89 85 

Riclver,  In  re,  66  N.  H.  207,  29  Atl.  559 7 

Ricketts  v.  Birmingham  St.  Ry.  Co.,  85  Ala.  600 182 

Ricketts  v.  Jolliff,  62  Miss.  440 18 

Riehl  V.  Assn.,  104  Ind.  70,  3  N.  E.  663 205 

Riggan  v.  Crane,  86  Ky.  249,  5  S.  W.  561 78 

Right  V.  Cuthell,  5  East.  491  (Eng.) 88 

Kiley  v.  Minor,  29  Mo.  439... 2 

Ringo  V.  Binns,  10  Pet.  (U.  S.)  269 236,  237 

Ripley  v.  Gelston,  9  Johns.  (N.  Y.)  201 218 

Ritch  V.  Smith,  82  N.  Y.  627 150 

Ritchie  v.  Waller,  63  Conn.  155,  28  Atl.  29 188 

Robbins  v.  Blanding,  87  Minn.  246,  91  N.  W.  844 83 

Robert-Buist  Co.  v.  Lancaster  Merc.  Co.,  73  S.  C.  48,  52  S.  E. 

789 113 

Roberts  v.  Button,  14  Vt.  195 215 

Roberts  v.  Knights,  7  Allen  (Mass.)  449 18 

Roberts  v.  Noyes,  76  Me.  590 238 

Roberts  v.  Rumley,  58  Iowa  301,  12  N.  W.  323 85 

Robertson  v.  Cloud,  47  Miss.  208 97 

Robins  v.  Coryell,  27  Barb.   (N.  Y.)   556 29 

Robinson  v.  Anderson.  106  Ind.  152,  6  N.  E.  12 150,  228 

Robinson  v.  Bank,  44  Ohio  St.  441,  8  N.  E.  583 214 

Robinson  v.  Bird,  158  Mass.  357,  33  N.  E.  391 219 

Robinson  v.  Jarvis,  25  Mo.  App.  421 24 

Robinson  v.  Kanawha  Valley  Bank,  44  Ohio  St.  441,  8  N.  E. 

583   168,  169 

Robinson  v.  Larabee,  63  Me.  116 261 

Robinson  Merc.  Co.  v.  Thompson,  74  Miss.  847,  21  South.  794 

143,  149 

Robinson  v.  Webb,  11  Bush.   (Ky.)  464 224 

Robison  v.  Allison,  192  Mo.  366,  91  S.  W.  115 19 

Robison  v.  Iron  Co.,  39  Hun.    (N.  Y.)   634 130 

Robison  v.  Patterson,  71  Mich.  141,  39  N.  W.  21 44 

Roca  V.  Byrne,  145  N.  Y.  182,  39  N.  E.  812 205 

Roche  V.  Pennington,  90  Wis.  107,  62  N.  W.  946  .■ 153 

Rochester  v.  Levering,  104  Ind.  562,  4  N.  E.  203 24,  253 

Roehl  v.  Haumesser,  114  Ind.  311,  15  N.  E.  345 55 


312  TABLE  OF  CASES  CITED. 

neferences  are  to  pages. 

Rogers  v.  Greenwood,  14  Minn.  333 158 

Rogers  v.  Higgins,  48  111.  211 19 

Rogers  v.  Halden,  142  Mass.  196,  7  N.  E.  768 141 

Rogers  v.  Kneeland,  10  Wend.  (N.  Y.)  218 90 

Rogers  V.  March,  33  Me.  106 211 

Rolf  V.  Delman,  7  RoM.  (N.  Y.)  80 48 

Rolfe,  B.,  in  Wilson  v.  Brett,  11  M.  &  W.  113 233 

Rose  V.  Hayden,  35  Kan.  106,  10  Pac.  554 236 

Rosenbaum  v.  Hayes,  8  N.  D.  461,  79  N.  W.  987 261 

Rosenstock  v.  Tormey,  32  Md.  169,  3  Am.  Rep.  125. ..   35,  156,  256 

Rosser  v.  Darden,  82  Ga.  219,  7  S.  E.  919 199 

Rossiter  v.  Rossiter,  8  Wend.  (N.  Y.)  494,  24  Am.  Dec.  62...  151 

Roundtree  v.  Smith,  108  U.  S.  269 49 

Rountree  v.  Davidson,  59  Wis.  522,  18  N.  W.  518 122 

Rowe  V.  Rand,  111  Ind.  206,  12  N.  E.  377 98,  102,  104,  223 

Rowlands  v.  Higgins,  28  Conn.  122 114 

Ruckman  v.  Bergholz,  38  N.  J,  Law  531 248 

Ruffner  v.  Hewit,  7  W.  Va.  585 6 

Ruschenberg  v.  Southern  Elec.  Co.,  161  Mo.  70,  61  S.  W.  626.  182 

Russ  V.  Telfner,  57  Fed.  973 87 

Russell  V.  Andrae,  79  Wis.  108,  48  N.  W.  117 38 

Russo  V.  Maresca,  72  Conn.  51,  43  Atl.  552 73 

Ruthven  v.  Ins.  Co.,  92  Iowa  316,  60  N.  W.  663 32 

Ryan  v.  Tudor,  31  Kan.  366,  2  Pac.  797 35,  151 

Ryder  v.  Johnston,  153  Ala.  482,  45  South.  181 104 

S. 

Sadler  v.  Leigh,  4  Camp.  195  (Eng.) 197 

St.  Johnsbury  etc.  Ry  v.  Hunt,  55  Vt.  570,  45  Am.  Rep.  639 

207 

St.  Louis  Dairy  Co.  v.  Sauer,  16  Mo.  App.  1 52 

St.  Louis  etc.  Co.  v.  Parker,  59  111.  23 64 

St.  Louis  etc.  Ry.  Co.  v.  Smith,  48  Ark.  317,  3  S.  W.  364 38 

St.  Louis  Gun.  Adv.  Co.  v.  Wannamalver  &  Brown,  115  Mo. 

App.  270,  90  S.  W.  737 130 

St.  Paul  Fire  etc.  Ins.  Co.  v.  Parsons,  47  Minn.  352,  50  N. 

W.  240 186 

St.  Peter  v.  Denison,  58  N.  Y.  421 29 

Saladin  v.  Mitchell,  45  Hi.  79 15^ 

Salisbury  v.  Brisbane,  61  N.  Y.  617 26 


TABLE  OF  CASES  CITED.  313 

References  are  to  pages. 

Saltus  V.  Everett,  20  Wend.   (N.  Y.)   2G7,  32  Am.  Dec.  541 

HG,  203 

Sanborn  v.  Flager,  9  Allen  (Mass.)  474 31 

Sandage  v.  Studebaker  Bros.  Mfg.  Co.,  142  Ind.  148,  41  N.  E. 

380 41 

Sanders  v.  Brown,  145  Ala.  665,  39   South.  732 62 

Sanford  V.  Handy,  23  Wend.  (N.  Y.)  260 131,196 

Sanford  v.  Johnson,  24  Minn.  122 71 

Sargeant  v.  Clark,  108  Pa.  St.  588 158 

Saveland  v.  Green,  40  Wis.  431 34,  83,  257,  258 

Savings  Bank  v.  Railway  Co.,  20  Kan.  519 192 

Sawyer  v    Lorillard,  48  Ala.  332 260,  261 

Sawyer  v.  Mayhew,  51  Me.  398 227 

Sawyer  v.  Northam,  212  N.  C  261,  16  S.  E.  1023 19 

Sax  V.  Drake,  69  Iowa  760,  28  N.  W.  423 60 

Saxonia  etc   Mining  Co.  v.  Cook,  7  Colo.  569,  4  Pac.  1111..     142 

Sayre  v.  Nichols,  7  Cal.  535,  68  Am.  Dec.  280 32,  34,  170 

Scanlan  v.  Keith,  102  111.  634,  40  Am.  Rep.  624 167,  171 

Scarritt  Comstock  Furniture  Co.  v.  Hudspeth,  19  Okla.  429, 

91  Pac.  843 147 

Schaefer  v.  Henkel,  75  N.  Y.  378 223 

Schendel  v.  Sevenson,  153  Mass.  351,  26  N.  E.  689 172 

Schepflin  v.  Dessar,  20  Mo.  App.  569 175 

Schick  V.  Suttle,  94  Minn.  135,  102  N.  W.  217 239 

Schilling  v.  Rosenheim,  30  111.  App.  81 114 

Schlater  v.  Winpenny,  75  Pa.  St.  321 98 

Schmaltz  v.  Avery,  16  Q.  B.  655  (Eng.) 224 

Schuchardt  v.  Aliens,  1  Wall.  (U.  S.)  359 156 

Schmidt  v.  Shaver,  196  111.  108,  63  N.  E.  655 112 

Schneider  v.  Schneider,  125  Iowa  1,  99  N.  W.  159 57 

Schramm  v.  O'Connor,  98  111.  539 18 

Schwartze  v.  Yearly,  31  Md.   270 24 

Schweyer  v.  Jones,  152  Mich.  241,  115  N.  W.  974 173 

Schwind  v.  Boyce,  94  Md.  510,  51  Atl.  45 158,  186 

Scott  V.  Elmendorf,  12  Johns.    (N.  Y.)    317 151 

Scott  V.  Jester,  13  Ark.  438 260 

Scott  V.  Lord  Ebury,  L.  R.  2,  C.  P  255  (Eng.) 75 

Scott  V.  McGrath,  7  Barb.  (N.  Y.)  53 6 

Scott  V.  Maier,  56  Mich.  544,  23  N  .W.  218 247 

Scott  V.  Rogers,  31  N.  Y.  676 228 

Scudder  v.  Anderson,  54  Mich.  122,  19  N.  W.  775 153 


314  TABLE  OF  CASES  CITED, 

References  are  to  pages. 

Sea  V.  Carpenter,  16  Ohio  St.  412 253 

Seaman  v.  Whitney,  24  Wend.  (N.  Y.)  260,  35  Am.  Dec.  618. .  218 

Searing  v.   Butler,   69    111.    575 82,   118,  256 

Seavers  v.  Phelps,  11  Pick.  (Rlass.)  304 16 

Seabald  v.  Citizens'  Bank,  31  Ky.  Law  Rep.  1244,  105  S.  W. 

530 187 

Second  Nat.  Bank  v.  Adams,  29  Ky.  Law  Rep.  566,  93  S.  W. 

.671 147 

Second  Nat.  Bank  v.  Steele  Co.,  155  Ind.  581,  58  N.  E.  833. .  16^ 
Security  Trust  &  Life  Ins.  Co.  v.  Ellsworth,  129  Wis.  349, 

109  N.  W.  125 101 

Sedgwick  v.  Stanton,  14  N.  Y.  289 44 

Seeberger  v.  McCormick,  178  111.  404,  53  N.  E.  340 216,  217 

Sellars  v.  Kelly,  45  Miss.  323 77 

Semple  v.  Morrison,  23  Ky.  298 19 

Senter  v.  Monroe,  77  Cal.  347,  19  Pac.  580 215 

Serjeant  v.  Blunt,  16  Johns.   (N.  Y.)   74... 227 

Sewell  V.  Holland,  61  Ga.  608 12 

Sexton  V.  Weaver,  141  Mass.  273 37 

Seymour  v.  Newton,  105  Mass.  272 262 

Shackman  v.  Little,  87  Ind.  181 130,  156 

Shaefer  v.  Henkel,  75  N.  Y.  378 54 

Shanks  v.  Lancaster,  5  Grat.  (Va.)  110,  50  Am.  Dec.  108 162 

Sharp  V.  Jones,  18  Ind.  314,  81  Am.  Dec.  359 195,  222 

Shattuck  V.  Eastman,  12  Allen  (Mass.)  369 166 

Sheanon  v.  Pac.  Mut.  Life  Ins.  Co.,  83  Wis.  507,  53  N.  W. 

878 115,  257 

Shearman  v.  Morrison,  149  Pa.  St.  386,  24  Atl.  313 241 

Shopard  v.  McNail,  122  Mo.  App.  418,  99  S.  W.  494 lOG.  107 

Shepardson  v.  Gillette,  133  Ind.  125,  31  N.  E.  788 71 

Shephard  &  Morse  Lbr.  Co.  v.  Eldridge,  171  Mass.  516,  51  N. 

E.  9 S6 

Shields  v.  Blackburne,  1  H.  Bl.  159  (Eng.) 234 

S.  H.  Green  &  Sons  v.  Freund,  80  C.  C.  A.  387,  150  Fed.  721 

250 

Shine  v.  Kinoaly,  102  111.  App.  473 198 

Shirland  v.  Iron  Works,  41  Wis.  162 235 

Shinn  V.  Guiton  &  Harrington  Mule  Co.,  109  Mo.  App.  557,  83 

S.  W.  1015 86 

Shinn  V.  Hicks,  68  Tex.  277,  4  S.  W.  4SC 81 

Shoonfcl.l   V.  FloiKhol,  7?  111.  404 227 


TABLE  OF  CASES  CITED.  315 

References  are  to  pages. 

Shoninger  v.  Peabody,  57  Conn.  42,  17  Atl.  278 SO 

Short  V.  Millard,  68  111.  292 94 

Shotwell  V.  Ellis,  42  Miss.  439 18 

Shuetze  v.  Barley,  40  Mo.  C9 252 

Sibbald  v.  Bethlehem  Iron  Works,  83  N.  Y.  378,  38  Am.  Rep. 

441 252 

Sidway  v.  American  Mortgage  Co.,  222  111.  270,  78  N.  E.  561  253 

Siehold  v.  Davis,  67  Iowa  560.  25  N.  W.  778 128,  138,  143 

Sill  V.  Pate,  230  111.  39,  82  N.  E.  356 84 

Silverman  v.  Bullock,  98  111.  11 128 

Simmons  v.  More,  100  N.  Y.  140,  2  N.  E.  640 217 

Simonds  v.  Heard,  23  Pick.  (Mass.)  120,  34  Am.  Dec)  41.  .211,  212 

Simons  v.  Wittman,  113  Mo.  App.  257,  88  S.  W.  791 222 

Simonton  v.  First  Nat.  Bank,  24  Minn.  216 95 

Simpson  v.  Com.  89  Ky.  412,  12  S.  W.  630 55 

Simpson  v.  Walby,  63  Mich.  439,  30  N.  W.  199 39,  243 

Sims  V.  Dame,  113  Ind.  127,  15  N.  E.  217 12 

Singer  etc.  Stone  Co.  v.  Hutchinson,  184  111.  169,  56  N.  E. 

353 113 

Singer  Mfg.  Co.  v.  Christian,  211  Pa.  St.  534,  60  Atl.  1087..  86 

Singer  Mfg.  Co.  v.  Holdfodt,  86  111.  455,  29  Am.  Rep.  43....  61 

Singer  Alfg.  Co.  v.  Rahn,  132  U.  S.  518,  10  Sup.  Ct.  175 188 

Singer  Mfg.  Co.  v.  Taylor,  150  Ala.  574,  43  South.  210 189 

Singleton  v.  Scott,  11  Iowa  589 29 

Skearaas  v.  Finnegan,  32  Minn.  107,  19  N.  W.  729 217 

SME  V.  Stoddard,  63  Conn.  198,  26  Atl.  874 133 

Sloan  V.  Railway  Co.,  62  Iowa  728,  16  N.  W.  331, 37 

Sloan  V.  State  8  Ind.  312 194 

Slawson  v.  Loring,  5  Allen  (Mass.)  540,  81  Am.  Dec.  750 170 

Sloenecker  v.  Garrett,  48  Pa.  St.  415 114 

Small  v.  Howard,  128  Mass.  131,  35  Am.  Rep.  363 230,  232 

Smart  v.  Sanders,  3  C.  B.  380  (Eng.)   155 

Smith,  v.  Allen,  86  Mo.  178 55 

Smith  V.  Alexander,  31  Mo.  193 211 

Smith  V.  Barnard,  148  N.  Y.  420,  42  N.  E.  1054 118 

Smith.  V.  Binder,  75  111.  492 218 

Smith  V.  Brotherline,  62  Pa.  St.  461 237 

Smith  V.  Clews,  105  N.  Y.  283,  59  Am.  Rep.  502,  11  N.  E.  632 

146,  202 

Smith  V.  Dickinson,  25  Tenn.   (6  Hump.)   261,  44  Am.  Dec. 

306 51 


316  TABLE  OF  CASES  CITED, 

References  are  to  pages. 

Smith  V.  Farmers  etc.  Bank,  2  Cal.  App.  377,  34  Pac.  348 

204,  205 

Smith  v.  Fletcher,  75  Minn.  189,  77  N.  W.  800 83 

Smith  V.  Humphrey,  88  Me.  345,  34  Atl.  166 47 

Smith  V.  Kelly,  43  Mich.  390,  5  N.  W.  437 218 

Smith  V.  Morse,  9  Wall.    (U.   S.)    76 80,  164 

Smith  V.  Sublett,  28  Tex.  163 33,  36 

Smith  V.  Swan,  2  Tex.  Civ.  App.  563,  22  S.  W.  247'. 29 

Smith  V.  Tracy,  36  N.  Y.  79 85,  124,  133,  156 

Smith's  Com.  v.  Forsythe,  28  Ky.  Law  Rep.  1034,  90  S.  W. 

1075 17 

Smout  V.  Ilbery,  10  M.  &  W.  1  (Eng.) 217 

Smythe  v.  Parsons,  37  Kan.  79,  14  Pac.  444 132 

Smythe's  Estate  v.  Evans,  209  111.  376,  70  N.  E.  906 48 

Snell  V.  Goodlander,  9  Minn.  533,  97  N.  W.  421 239,  240 

Snider  v.   Express   Co.,   77   Mo.    523 222 

Snodgrass  v.  Butler,  54  Miss.  45 238 

Snook  v.  Lord,  56  N.  Y.  605 112 

Snyder  v.  Van  Doren,  46  Wis.  610 152 

Soens  V.  Racine,  10  Wis.  271 26 

Solomon  v.  Penoyar,  89  Mich.  11,  50  N.  W.  644 215 

Souhegan  Nat.  Bank  v.  Wallace,  61  N.  H.  24 238 

South  Bend  Toy  Mfg.  Co.,  v.  Dakota  F.  &  M.  Ins.  Co.,  3  S.  D. 

205,  52  N.  W.   866 120 

South  Berwick  v.  Huntress,  53  Me.  89,  87  Am.  Dec.  535 53 

Southern  Life  Ins.  Co.  v.  McCain,  96  U.  S.  84 65,  98 

Southern  Ry.  Co.  v.  Rowe,  2  Ga.  App.  577,  59  S.  E.  462 221 

Sparks  v.  Transfer  Co.,  104  Mo.  531,  15  S.  W.  417 213 

Sparta  School  Twp.  v.  Mendall,  138  Ind.  188,  37  N.  E.  604....     215 

Spaulding  v.  Ewing,  149  Pa.  St.  375,  24  Atl.  219 44 

Spear  v.  Gardner,  16  La.   Ann.  383 250 

Spence  v.  Cotton  Mills,  115  N.  C.  210,  20  S.  E.  372 70,  71 

Spencer  v.  Blackman,  9  Wend.  (N.  Y.)  167 228 

Spencer  v.  Field,  10  Wend.   (N.  Y.)   88 160,  164,  196 

Spofford  V.  Hobbs,  29  Me.  148,  48  Am.  Dec.  521 120 

Sprague  v.  Gillett,  9  Mete.  (Mass.)  91 129,  149 

Spraights  v.  Hawley,  39  N.  Y.  441,  100  Am.  Dec.  452 219 

Spring  v.  Ansonia  Clock  Co.,  24  Hun.   (N.  Y.)  175 254 

SpringHeld,  etc.  Engine  Co.  v.  Kennedy,  7  Ind.  App.  502,  34 

N.    E.    856 ^^ 

Ktnckpolp  V.  .Arnold.  11   Mass.  27.  G  Am.  Doc.  150 222 


TABLE  OF  CASES  CITED,  317 

References  are  to  pages. 

Stacy  T.  Bank,  12  Wis.  629 39 

Stafford  v.  Lick,  13  Cal.  240 121 

Stainback  v.  Read,  11  Grat.  (Va.)  281,  62  Am.  Dec.  648..   120,  134 

Stall  V.  Meek,  70  Pa.  St.  181 21 

Standard  Oil  Co.  v.  Gilbert,  84  Ga.  714,  11  S.  E.  491 96 

Stanton  v.  Bell,  9  N.  C.  145,  11  Am.  Dec.  744 232 

Stanton  v.  Embrey,  93  U.  S.  548 248 

Staples  V.  Schmid,  18  R.  I.  224,  26  Atl.  193 188 

Stack  V.  Parker,  2  Pick.  (Mass.)  267,  13  Am.  Dec.  425 25.") 

Stark  V.  Starr,  94  U.  S.  477 86 

Starke  v.  Kenan,  11  Ala.  819 158 

State  V.  Bacon,  40  Vt.  456 193 

State  V.  Buttle's  Exr's,  3  Ohio  St.  309 77 

State  V.  Devoon,  31  W.  Va.  122,  5  S.  E.  315 194 

State  V.  Hastings,  10  Wis.  518 125 

State  V.  Hays,  52  Mo.  578 125 

State  V.  Henderson,  86  Mo.  App.  482 113 

State  V.  Hubbard,  58  Kan.  797,  51  Pac.  290 2 

State  V.  James,  63  Mo.  570 193 

State  V.  Kittele,  110  N.  C.  560,  15  S.  E.  103 194 

State  V.  Learned,  41  Vt.  585 40,  193 

State  V.  McCanoe,  110  Mo.  398,  19  S.  W.  648 40,  194 

State  V.  Mason,  26  Or.  273,  38  Pac.  130 194 

State  V.  O'Connor,  5S  Minn.  193,  59  N.  W.  999 \  194 

State  V.  Roby,  52  Mich.  577,  18  N.  W.  365 194 

State  V.  Sarlis,  135  Ind.  195,  34  N.  E.  1129 .' 4 

State  V.  Smith,  78  Me.  260,  4  Atl.  412 40,  189 

State  V.  Smith,  10  R.  L  258 194 

State  V.  State  Journal,  77  Neb.  752,  110  N.  W.  763 239 

State  V.  Stewart,  31  Me.  515 194 

State  V.  Thompson,  120  Mo.  12,  25  S.  W.  346 7 

State  V.  Torinus,  26  Minn.  1,  49  N.  W.  259 70,  77 

State  V.  Walker,  125  U.  S.  339 105 

State  V.  Wentworth,  65  Me.  234 194 

State  V.  Wychoff ,  31  N.  J.  Law  65 193 

State  V.  Young,  23  Minn.  551 53,  54 

State  Bank  v.  Mfg.  Co.,  17  Tex.  Civ.  App.  214,  42  S.  W.  1016  39 

Steamboat  v.  King,  16  How.    (U.  S.)   469 234 

Steamship  Bulgarian  Co.  v.  Transp.  Co.,  135  Mass.  421 211 

Steamboat  Co.  v.  Atkins,  22  Pa.  St.  522 223 

Steams  v.  Doe,  12  Gray  (Mass.)  482,  74  Am.  Dec.  608 58 


'318  TABLE   OF  CASES  CITED. 

References  are  to  pages. 

Steele-Smith  Gro.  Co.  v.  Potthast,  109  Iowa  413,  80  N.  W.  519     173 

Steiner  v.  Clisby,  103  Ala.  181,  15  South.  612 230 

Sternaman  v.  Met.  Life  Ins.  Co.,  170  N.  Y.  413,  62  N.  E.  763        1 

Stevens  v.  Ewing,  87  Tenn.  49,  9  S.  W.  230 25 

Stevens  v.  Walker,  55  111.  151 232 

Stewart  V.  Cowles,  67  Minn.  184,  69  N.  W.  694 115,  136 

Stewart  v.  Gregory,  9  N.  D.  618,  84  N.  W.  553 62 

Stewart  v.  Schall,  65  Md.  299,  57  Am.  Rep.  327 48 

Stewart  &  Soubral  v.  Tucker,  119  Ala.  211,  43  South.  1009..     248 

Stimpson  V.  Sprague,  6  Greenl.    (Me.)    470 232 

Stinchfield  v.  Little,  1  Me.  231,  10  Am.  Dec.  65 160,  161,  213 

Stinson  v.  Lee,  68  Miss.  113,  8  South.  272 164 

Stoddard  v.  Kej%  62  How.  Prac.  (N.  Y.)  137 102 

Stokes  V.  Mackay,  140  N.  Y.  640,  35  N.  E.  786 117 

Story  V.  Flournoy,  55  Ga.  56 261 

Stoughton  V.  Baker,  4  Mass.  522,  3  Am.  Dec.  236 29 

Stowell  V.  Eldred,  39  Wis.  614 124 

Stracham  v.  Muxlow,  24  Wis.  21 99 

Stratton  -^  Todd,  82  Me.  149,  19  Atl.  Ill 115 

Strauss  v.  Meertief,  64  Ala.  299,  3  Am.  Rep.  8 250,  251 

Street  v.  Sinclair,  71  Ala.  110 72 

Streissguth  v.  Bank,  43  Minn.  50,  44  N.  W.  797 39,  243 

Stroerner  v.  Van  Orsdel,  74.  Neb.  132,  103  N.  W.  1053 44 

Strong  v.  Buffalo  Land  Co.,  203  U.  S.  502 95 

Strong  V.  High,  2  Rob.   (La.)   103,  38  Am.  Dec.  195 231 

Strong  V.  Wes.t,  110  Ga.  382,  35  S.  E.  693 252 

Studebaker  v.  Taylor,  170  Ind.  498,  83  N.  E.  747 17 

Studwell  V.  Shapter,  54  N.  Y.  249 22 

Sturges  V.  Bank  of  Circleville,  11  Ohio  St.  153 8 

Suit  v.  Woodhall,  113  Mass.  391 185 

Sullivan  v.  Shailor,  70  Conn.  733,  40  Atl.  1054 198 

Summer  v.  Reicheniker,  9  Kan.  320 253 

Summerlot  v.  Hamilton,  121  Ind.  87,  22  N.  E.  973 8 

Summers  v.  Carey,  69  App.  Div.  428,  74  N.  Y.  Supp.  980 42 

Summerville  v.  Hannibal  etc.  Ry.  Co.,  62  Mo.  391 61,  119 

Sumner  v.  Conant,  10  Vt.  9 30,  7ti 

Sumner  v.  Stewart,  09  Pa.  St.  321 132 

Siissdorff  V.  Schmidt,  55  N.   Y.   319 250 

Sutherland  v.  Wyer.  67  Me.  64 251 

Swan  V.  Nesmith,  7  Pick.  (Mass.)  220,  19  Am.  Dec.  282 230 

Swartzwood  v.  Chance,  131  Iowa  714,  109  N.  W.  297 17 


TABLE  OF  CASES  CITED.  319 

References  are  to  pages. 

Swartz  V.  Ballou,  47  Iowa  188,  29  Am.  Rep.  470 53 

Sweeney  v.  McLeod,  15  Or.  330,  15  Pac.  275 44 

Sweet  V.  Jacobs,  6  Paige  (N.  Y.)  255,  31  Am.  Dec.  252 236 

Swentzel  v.  Bank,  147  Pa.  St.  140,  23  Atl.  405 233 

Swift  V.  Aspell  &  Co.,  82  N.  Y.  Supp.  659 45 

Swift  V.  Jewsbury,  L.  R.  9  Q.  B.  301  (Eng.) 30 

Swift  V.  Tyson,  16  Pet.  (U.  S.)  1 259 

Swindell  v.  Latham,  145  N.  C.  144,  58  S.  E.  1010....  24,  149,  235 

Swisher  v.  Palmer,  106  111.  App.  432 85 

Switzer  v.  Connett,  11  Mo.  88 227 

Switzer  v.  Wilvers,  24  Kan.  384,  36  Am.  Rep.  259 147 

T. 

Taber  v.  Cannon,  8  Mete.  (Mass.)  456 149,  152 

Taft  V.  Brewster,  9  Johns.  (N.  Y.)  334,  6  Am.  Dec.  280  161, 

213,  222 

Tagg  V.  Bowman,  108  Pa.  St.  273,  56  Am.  Rep.  204 242 

Talbot  V.  Bowen,  1  A.  K.  Marsh  (Ky.)  436,  10  Am.  Dec.  747  22 

Talmadge  v.  Bierhause,  103  Ind.  270,  2  N.  E.  716 133,  147 

Tallon  V.  Mining  Co.,  55  Mich.  147 248 

Tannat  v.  Rocky  Mountain  Nat.  Bank,  1  Colo.  278,  9  Am. 

Rep.    156 166 

Tate  V.  Evans,  7  Mo.  419 151,  152 

Taussig  V.  Hart.  58  N.  Y.  425 235 

Taylor  v.  Assn.,  68  Ala.  229 80 

Taylor  v.  Burns,  203  U.  S.  120 105 

Taylor  v.  Carpenter,  3  Story  (U.  S.)   458 18 

Taylor  v.  Griswold,  14  N.  J.  Law  222,  27  Am.  Dec.  33 29 

Taylor  v.  Harlow,  11  Barb.   (N.  Y.)   232 122 

Taylor  V.  Hayes,  63  Vt.  475,  21  Atl.  610 224 

Taylor  v.  Labeaume,  17  Mo.  338 153 

Taylor  v.  Nostrand,  134  N.  Y.  108,  31  N.  E.  246 216 

Taylor  v.   Starkley,  59  N.  H.  142 147 

Tedrick  v.  Hiner,  61  111.  189 25 

Temby  v.  Williams  Burnt  Pottery  Co.,  229  111.  540,  82  N.  E. 

336     249 

Temple  v.  Pomeroy,  4  Gray  (Mass.)  128 149,  152 

Tenn.  River  Transp.  Co.  v.  Kavanaugh,  101  Ala.  1,  13  South. 

283 61 


320  T.VBLE  OF  CASES  CITED. 

References  are  to  pages. 

Terre-Haute  etc.  Ry.  Co.  v.  McMurray,  98  Ind.  358,  49  Am. 

Rep.    752 58 

Territory  v.  Maxwell,  2  N.  M.  250 4 

Terwillinger  v.  Murphy,  104  Ind.  32,  3  N.  W.  404 215 

Terwillinger  v.  Ontario  etc.  Ry.  Co.,  149  N.  Y.  86,  43  N.  E. 

432   100,  106 

Texas  &  Pacific  Ry.  v.  Lester,  75  Tex.  56,  12  S.  W.  955..  180,  183 
Thallhimer  v.   Brinkerhoff,  4  Wend.    (N.   Y.)    394,   29   Am. 

Dec.    155 179 

Thayer  v.  Wadsworth,  19  Pick.  (Mass.)  349 255 

Third  National  Bank  v.  Bank,  61  Miss.  112,  48  Am.  Rep.  78  39 

Third  Nat.  Bank  v.  Gas  Co.,  36  Minn.  75,  30  N.  W.  440 205 

Thomas  v.  Atkinson,  38   Ind.   248 175 

Thomts  V.  Caukett,  57  Mich.  392,  24  N.  W.  154 41,  47 

Thomas  v.  Davenport,  9  B.  &  C.  78 175 

Thomas  v.  First  Nat.  Bank,  213  111.  261,  72  N.  E.  801 42 

Thomas  v.  Kerr,  3  Bush.  (Ky.)  619 S 

Thompson  v.  Barnum,  49  Iowa  392 201 

Thompson  v.  Clay,  60  Mich.  627,  27  N.  W.  G99 59 

Thompson  v.  Elliot,  73  111.  221 150 

Thompson  V.  Wharton,  7  Bush.  (Ky.)   563 46 

Thompson  v.  Woodruff,  47  Tenn.  401 7 

Thorne  v.  Brown,  63  W.  Va.,  603,  60  S.  E.  614 24,  236 

Thorne  v.  Dees,  4  Johns.  (N.  Y.)  84 232 

Thornton  v.  Boyden,  31  111.  200 128 

Thrift  V.  Payne,  71  111.  408 254 

Thurher  v.  Anderson,  88  111.  167 60 

Thurston  v.  Blanchard,  22  Pick.  (Mass.)  20,  33  Am.  Dec.  700  155 

Tier  v.  Lampson,  35  Vt.  179,  82  Am.  Dec.  634 98 

Tiernan  v.  Commercial  Bank.  7  How.    (Miss.)    648,  40  Am. 

Dec.    83 35 

Tiernan  v.  Jackson,  5  Pet.   ( U.  S. )  580 218 

Tillery  v.  Wolverton,  46  Minn.  256,  48  N.  W.  908 25 

Tipping  V.  Rohbins,  64  Wis.  546,  25  N.  W.  713 12 

Tohin  V.  Larkin,  183  Mass.  389,  67  N.  E.  340 164 

Todd  V.  Emly,  7  M.  &  W.  427  (Eng.) 14 

Todd  V.  German  Am.  Ins.  Co.,  2  Ga.  App.  789,  59  S.  E  94.  .   24,  235 

Toland  V.  Murray,  18  Johns.    (N    Y.)   24 223 

Tolodo  etc.  Ry.  Co.  v.  Mylott,  6  Ind.  App.  438,  33  N.  E.  135.  .  58 
Tollerton  &  Warfield  Co.  v.  Gilruth,  21  S.  D.  320,  112  N.  W. 

842 146 


TABLE  OP  CASES  CITED.  321 

Heferences  are  to  pages. 

Toole  V.  Crews,  3  Ga.  App.  238,  59  S.  E.  727 147 

Towle  V.  Dresser,  73  Me.  252 • 21 

Towle  V.  Leavitt,  23  N.  H.  360,  55  Am.  Dec.  195 134,  202 

Townshend  v.  Shaffer,  30  W.  Va.  176,  3  S.  E.  586 122 

Tracy  v.  Talmadge,  14  N.  Y.  162,  67  Am.  Dec.  132 49 

Traders  &  Tuckers  Bank  v.  Bank,  108  Va.  59,  60  S.  E.  743 

185,  187 

Trainer  V.  Morrison,  78  Me.  160,  3  Atl.  185 135,  148 

Traub  v.  Millil^en,  57  Me.  67,  2  Am.  Rep.  14 199 

Tredway  v.  Sioux  etc.  Ry.,  40  Iowa  526 158 

Triggs  V.  Jones,  46  Minn.  277,  48  N.  W.  1113 91 

Trimble  v.  Kerr  Merc.  Co.,  56  Mo.  App.  683 119 

Triplett  v.  Jackson,  130  Iowa  408,  IOC  N.  W.  954 38 

Trist  V.  Child,  21  Wall.  (U.  S.)  441 43 

Trowbridge  v.  Wheeler,  1  Allen   (Mass.)   162 112 

Trudo  V.  Anderson,  10  Mich.  357,  81  Am.  Dec.  795 47,  70 

Trueblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756 76 

Trundy  v.  Farrar,  32  Me.  225 54,  119 

Truslow  V.  Parkersburg  Bridge  Co.,  61  W.  Va.  629,  57  S.  E. 

51    79,  235 

Trustees  etc.  Ins.  Corp.  v.  Bowling,  2  Kan.  App.  770,  44  Pac. 

42     141 

Tuckwell  V.  Lambert,  5  Cush.   (Mass.)  23 205 

Tucker  v.  Railway  Co.,  54  Mo.  117 59 

Tucker  Mfg.  Co.  v.  Fairbanks,  98  Mass.  101,  164,  166,  168,  213 

222 

Turner  v.  Cross,  83  Tex.  218,  18  S.  W.  578 4 

Turner  v.  Phoenix  Ins.  Co.,  55  Mich.  236,  21  N.  W.  326..  70,  189 

Twohy  Merc.  Co.  v.  Melbye,  78  Minn.  357,  81  N.  W.  20 205 

Tynan  v.  Dulling  (Tex.  Civ.  App. )  25  S.  W.  465 33 

Tynes  v.  Grimstead,  1  Tenn.  Ch.  508 24 

U. 

Union  Gold  Min.  Co.  v.  Rocky  Mt.  Nat.  Bank,  96  U.  S.  640,  2 

Colo.  248 81 

Union  Pac.  Co.  v.  Beatty,  35  Kan.  268,  10  Pac.  845 59 

Union  Pac.  Ry.  Co.  v.  Fray,  35  Kan.  700 182 

Union  Trust  Co.  v.  Phillips,  7  S.  D.  225,  63  N.  W.  903 196 

U.  S.  V.  Bartlett,  2  Ware   (U.  S.)  17 30,  201 

U.  S.  V.  Gooding,  12  Wheat  (U.S.)  460 179,181,182 

21 


322  TABLE  OF  CASES   CITED. 

References  are  to  pages. 

U.  S.  V.  Grossmayer,  9  Wall.   (U.  S.)   72 18,  70,  71 

U.  S.  V.  Jarvis,  2  Ware  (U.  S.)  278,  Fed.  Cas.  No.  15,468  101,  102 

U.  S.  Express  Co.  v.  Rawson,  106  Ind.  215,  6  N.  E.  337 69,  88 

U.  S.  Fidelity  Guar.  Co.  v.  Ettenheimer,  70  Neb.  147,  99  N. 

W.   652 25 

U.  S.  Mortgage  Co.  v.  Henderson,  111  Ind.  24,  12  N.  E.  88..  90 
U.  S.  Roll.  St.  Co.  V.  Atl.  etc.  Ry.  Co.,  34  Ohio  St.  450,  32  Am. 

Rep.    380 , 206 

U.  S.  Tel.  Co.  V.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  51  222,  223 

Upton  \.  Dennis,  133  Mich.  238,  94  N.  W.  728 76,  132 

Urquhart  v.  Mortgage  Co.,  85  Minn.  69,  88  N.  W.  264..  250,  257 

V. 

Valeatine  v.  Stewart,  15  Cal.  387 47 

Valette  v.  Tedens,  122  111.  607,  14  N.  E.  52 236 

Valley  Bank  v.  Brown,  9  Ariz.  311,  83  Pac.  362 86 

Vanada  v.  Hopkins,  24  Ky.  285,  19  Am.  Dec.  92 124 

Van  Allen  v.  Vanderpool,  6  Johns.  (N.  Y.)  69 15 

Van  Antwerp  v.  Linton,  89  Hun.  (N.  Y.)  417,  157  N.  Y.  716, 

53  N.  E.  1133 220 

Van  Arman  v.  Byington,  38  111.  443 56,  24G 

Vance  v.  Anderson,  39  Iowa  426 160 

Van  Dusen  v.  Sweet,  51  N.  Y.  378 16 

Van  Dyke  v.  Van  Dyke,  123  Ga.  686,  51  S.  E.  582 160 

Van  Etta  v.  Evenson,  28  Wis.  33,  9  Am.  Rep.  486 53 

Van  Sickle  v.  Keith,  88  Iowa  9,  55  N.  W.  42 113 

Varnun  v.  Martin,  15  Pick.  (Mass.)  440 232 

Varnum  v.  Meserve,  8  Allen   (Mass.)   158 105 

Vasse  V.  Smith,  6  Cranch  (U.  S.)  226 22,  23 

Veazy  v.  Allen,  173  N.  Y.  359,  66  N.  E.  103 43 

Vennum  v.  Gregory,  21  Iowa  326 253 

Vent  V.  Osgood,  19  Pick.   (Mass.)   527 22 

Vernon  v.  Kirk,  30  Pa.  St.  218 31 

Very  v.  Levy,  13  How.  (U.  S.)  345 123 

Vescelius  v.  Martin,  11  Colo.  391,  18  Pac.  338 153 

Vicksburg  etc.  Ry.  Co.  v.  O'Brien,  119  U.  S.  99 178,  182 

VicKsburg  &  M.  R.  Co.  v.  Ragdale,  54  Miss.  200 83 

Vidoau  V.  Griffin,  21  Cal.  389 52 

Vilas  V.  Downer,  21  Vt.  419 67 


1 


TABLE  OF  CASES  CITED.  323 

References  are  to  pages. 

Vinton  v.  Baldwin,  95  Ind.  433,  88  Ind.  104,  45  Am.  Rep.  447 

241,   249,  260 

Virginia  etc.  Coal  Co.  v,  Lambert,  107  Va.  368,  58  S.  E.  561  74 

Visher  v.  Yates,  11  Johns.    (N.  Y.)  23 223 

Volger  V.  Ray,  131  Mass.  439 14 

Von  Hunter  v.  Spengeman,  17  N.  J.  Eq.  185 238 

Vose  V.  Dolan,  108  Mass.  155 53 

Voss  V.  Robertson,  46  Ala.  483 147 

Vulcan  Det.  Co.  v.  Amer.  Can  Co.  (N.  J.  Eq.),  67  Atl.  339..  186 

W. 

Waddill  V.  Sebree,  88  Va.  1012,  14  S.  E.  849 172 

Wadhams  v.  Gray,  73  111.  415 158 

Waggener  v.  Waggener,  19  Ky.  542 120 

Wagoner  v.  Watts,  44  N.  J.  Law  126 52,  54 

Waldman  v.  Ins.  Co.,  91  Ala.  170,  8  South.  666 32 

Wallace  v.  Bank,  1  Ala.  565 124 

Wallace  v.  Floyd,  29  Pa.  St.  184,  72  Am.  Dec.  620 247,  248 

Wallace  v.  Sawyer,  90  Ind.  499 80 

Wallis  Tob.  Co.  v.  Jackson,  99  Ala.  460.  13  South.  120 153 

Walls  V.  Bailey,  49  N.  Y.  464 132 

Walker  v.  Dennison,  86  111.  142 97,  101 

Walker  v.  Hannibal  etc.  Ry.  Co.,  121  Mo.  575,  26  S.  W.  360. .     118 

Walker  v.  Railway  Co.,  47  Mich.  338,  11  N.  W.  187 146,  203 

Walker  v.  Tirrell,  101  Mass.  257,  3  Am.  Rep.  352 248,  249 

Walker  v.  Walker,  5  Heisk.  (Tenn.)  425 91,  226,  227 

Walker  Co.  v.  Produce  Co.,  113  Iowa  428,  85  N.  W.  614 262 

Walsh  V.  Hartford  Fire  Ins.  Co.,  9  Hun.  (N.  Y.)  421 5 

Walsh  V.  Pierce,  12  Vt.  130 116 

Wambole  v.  Foote,  2  Dak.  1,  2  N.  W.  239 109 

Warburton  v.  Ralph,  9  Wash.  537,  38  Pac.  140 61 

Ward  V.  Bank,  7  T.  B.  Mon.  (Ky.)  93 152 

Ward  V.  Smith,  7  Wall.    (U.  S.)   447 109 

Ward  V.  Williams,  26  111.  447,  79  Am.  Dec.  385 69,  82 

Warder,  Bushnell  &  Glassner  v.  Cuthbert,  99  Iowa  681,  68 

N.  W.  917 80 

Warder  v.  White,  14  111.  App.  50 198 

Ware  v.  Hylton,  3  Dall.  199 18 

Ware  v.  Morgan,  67  Ala.  461 141,  216 

Warner  v.  Martin,  11  How.   (U.  S.)  209 33.  35,  156 


324  TABLE  OF  CASES  CITED. 

References  are  to  pages. 

Warner  v.  Smith,  8  Conn.  14 254 

Warren  v.  Hays,  74  N.  H.  355,  68  Atl.  193 86 

Warren  Bank  v.  Bank,  10  Cush.  (Mass.)  582 3& 

Washington  Bank  v.  Lewis,  22  Pick.  (Mass.)  24 115 

Watterson  v.  Rogers,  21  Kan.  529 69' 

Watson  V.  Banli,  8  Mete.  (Mass.)  217,  41  Am.  Dec.  500 241 

Watson  V.  Erb,  38  Ohio  St.  35 236 

Watson  V.  Muirhead,  57  Pa.  St.  161,  98  Am.  Dec.  213 232 

Watson  V.  Race,  46  Mo.  App.  546 61 

Watson  V.  Ruderman,  79  Conn.  687,  66  Atl.  515 19 

Watson  V.  Swan,  11  C.  B.   (N.  S.)  756  (Eng.) 75 

Watson  V.  Sherman,  84  111.  263 2,  51 

Watt  V.  Brookover,  35  W.  Va.  323,  13  S.  E.  1007 158 

Watt  V.  Howard,  70  Minn.  122,  72  N.  W.  840 136,  139,  140 

Watt  V.  Kavanaugh,  35  Vt.  34 99 

Weakley  V.  Pearce,  5  Heisk.  (Tenn.)   407 229 

Weare  v.  Grove,  44  N.  H.  196 215 

Weaver  v.  Cranall,  35  Ark.  198,  37  Am.  Rep.  22 32,  34 

Webb  V.  Browning,  14  Mo.  354 2,  54 

Webber  v.  Howe,  36  Mich.  150 71 

Webber  v.  Williams  College,  23  Pick.   (Mass.)   302 149,  151 

Weber  v.  Bridgman,  113  N.  Y.  600,  21  N.  E.  985 103 

Weber  v.  Shay,  56  Ohio  St.  116,  46  N.  E.  377 47 

Weber  v.  Weber,  47  Mich.  569,  11  N.  W.  389 219 

Weed  V.  Burt,  78  N.  Y.  192 251 

Weeks  v.  Holmes,  12  Cush.  (Mass.)  215 57,  246 

Weer  v.  Adams,  37  Ky.  378 230 

Wees  V.  Page,  47  Wash.  213,  91  Pac.  760 150 

Weiss  V.  WhitLemore,  28  Mich.  360 224 

Weisse  V.  New  Orleans,  10  La.  Ann.  46 158 

Weisse's  Appeal,  72  Pa.  St.  351 141 

Wellington  v.  Jackson,  121  Mass.  157 31,  74 

Wells  V.  Addison,  20  La.  Ann.  295 41 

Wells  V.  Michigan  Mut.  Life  Ins.  Co.,  41  W.  Va.  131,  23  S.  E. 

527     142 

Welsh  V.  Ferd  Holm  Bew.  Co.,  47  Mo.  App.  OOS 79 

West  St.  Louis  Sav.  Bank  v.  Bank,  95  U.  S.  557 154,  155 

Westbrook  v.  Griffin,  132  Iowa  185,  109  N.  W.  608 13 

Western  Cottage  Piano  Co.  v.  Anderson,  45  Tex.  Civ.  App. 

513,  101  S.  W.  1061 191 


TABLE  OF  CASES  CITED.  325 

References  are  to  pages. 

Western  Mfg.  Co.  v.  Cotton,  31  Ky.  Law  Rep.  1130,  104  S.  W. 

S.  W  758 79 

Western  Mining  Co.  v.  Toole,  2  Ariz.  82,  11  Pac.  119 178 

Western  Mining  Co.  v.  Toole,  2  Ariz.  82,  11  Pac.  119 178 

Western  Transportation  Co.  v.  Barber,  56  N.  Y.  544 238 

Weston  V.  Esty,  22  Colo.  334,  45  Pac.  367 70 

Weston  V.  Davis,  24  Me.  374 56,  246 

Weyerhauser  v.  Dunn,  100  N.  Y.  150,  2  N.  E.  274 243 

Whelan  v.  Reilly,  61  Mo.  565 65,  150 

Wheeler  v.  Benton,  67  Minn.  293,  69  N.  W.  927 59 

Wheeler  v.  Citizens  Bank,  32  Ky.  Law  Rep.  939,  107  S.  W. 

316     81 

Wheeler  v.  Haskins,  41  Me.  432 242 

Wheeler  v.  McGiiire,  86  Ala.  398,  5  South.  190 98,  99, 

112,  135,  143,  143 

Wheeler  v.  Nevins,  34  Me.  54 52 

Wheeler  v.  Sleigh  Co.,  39  Fed.  347 84 

Wheeler  v.  Walden,  17  Neb.  122,  22  N.  W.  346 211 

Wheeler  &  Wilson  Mfg.  Co.  v.  Aughey,  144  Pa.  St.  398,  22 

Atl.   667 84 

Wheeler  &  Wilson  Mfg.  Co.  v.  Givan,  65  Mo.  89 156 

Wheeler  &  Wilson  Mfg.  Co.  v.  Morgan,  29  KaQ.  371 62 

White  V.  Davidson,  8  Md.  169,  63  Am.  Dec.  699 29 

White  V.  Dalquist  Mfg.  Co.,  179  Mass.  427,  60  N.  E.  791 8 

White  V.  Equitable  Nuptual  Ben.  Union,  76  Ala.  251,  52  Am. 

Rep.    325 48 

White  V.  Ferguson,  29  Ind.  App.  144,  64  N.  E.  49 122 

White  V.  Fuller,  67  Barb.  (N.  Y.)  267 132 

White  V.  Howard,  46  N.  Y.  144 13 

White  V.  Leighton,  15  Neb.  424,  19  N.  W.  478 117 

White  V.  Madison,  26  N.  Y.  117 215,  216 

White  V.  Miller,  71  N.  Y.  134,  27  Am.  Rep.  13 178,  181 

White  V.  Railway  Co.,  90  Ala.  254,  7  South.  910 241,  260 

White  V.  Young,  122  Ga.  830,  51  S.  E.  28 122 

Whitehead  v.  Roddick,  34  N.  C.  95 163 

Whiteside  v.  U.  S.,  93  U.  S.  247 125 

Whitford  v.  Laidler,  94  N.  Y.  145,  46  Am.  Rep.  131 213 

Whiting  V.  W.  H.  Crawford  Co.,  93  Md.  390,  49  Atl.  615 224 

Whittier  v.  Child,  174  Mass.  36,  54  N.  E.  344 119 

Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229 20,  21 

Whitney  v.  Express  Co.,  104  Mass.  152,  6  Am.  Rep.  207 226 


326 


TABLE  OF  CASES  CITED. 


References  are  to  pages. 

^^^litney  V.  Martin,  88  N.  Y.  535 230 

Whitney  v.  Wyman,  101  U.  S.  392 211 

Wiclvs   V.   Hatch,   62   N.  Y.    535 33,  38 

Widi-ig  V.  Taggart,  51  Mich.  103,  16  N.  W.  251 23 

Wiener  v.  Whipple,  53  Wis.   289,  10  N.  W.  433 55 

Wiggins  V.  Leonard,  9  Iowa  194 181 

Wilber  First  Nat.  Bank  v.  Ridpath,  47  Neb.  96,  66  N.  W.  37..  116 

Wilbur  V.  Larkin,  3  Blackf.    (Ind.)    55 163 

Wilcox  V.  Arnold,  162  Mass.  577,  39  N.  E.  414. 13,  15 

Wilcox  V.  Hines,  160  Tenn.  524,  45  S.  W.  781 120 

Wilcox  V.  Railway,    24   Minn.    269 129 

Wilcox  V.  Routh,   17   Miss.  476 138 

Wilcox  &  Gibbs  Sew.  Mch.  Co.  v.  Ewing,  141  U.  S.  627 95 

Wiley  V.   Logan,   95   N.   C.   358 231 

Wilkins  v.  McGehee,  86  Ga.  764,  13  S.  E.  84 105 

Wilkinson  v.  Heavenrich,  58  Mich.  574 89 

Wilkinson  v.  King,    2    Camp.    335 203 

Williams  v.  Crosby  Lbr.  Co.,  118  N.  C  928,  24  S.  E.  800 79 

Williams  v.  Evans,  L.  R.  1  Q.  B.  352   (Eng.) 157 

Williams  V.  Everett,    14   East   582    (Eng.) 218 

Williams  v.  Getty,  31  Pa.  St.  461,  72  Am.  Dec.  757..   129,  130,  135 

Williams  v.  McKay,  40  N.  J.  Eq.  189,  53  Am.  Rep.  575 233 

Williams  v.  Mitchell,    17    Mass.    98 116 

Williams  v.  Moore-Guant  Co.,  3  Ga.  App.  756,  GO  S.  E.  372 

24,  235 

Williams  v.  Paine,   1G9   U.   S.  55 19,  31,  110 

Williams  v.  Poor,  3  Cranch.    (U.  S.)    251 157 

Williams  v.  Robbins,  16  Gray   (Mass.)   77,  77  Am.  Dec.  396  165 

Williams  v.  Sapieha,  94  Tex.  430,  61  S.  W.  115 17,  21 

Williams  v.   School   District,   21  Pick.    (Mass.)    75,  32   Am. 

Dec.    243 27 

Williams  v.  Tolbert,  76  S.  C.  211,  56  S.  B.  908 189 

Williams  v.  Williams,  55  Wis.  300,  12  N.  W.  465 241 

Williams  v.  Woods,    16    Md.    220 32 

Williamson  v.  Chicago  etc.  Ry.  Co.,  53  Iowa  126,  4  N.  W. 

870     47 

Williamson  etc.  Paper  Co.  v.  Bosbyshell,  14  Mo.  App.  534..  158 
Wills  V.  International  etc.  Ry.  Co.,  41  Tex.  Civ.  App.  58,  92 

S.    W.    273 59 

Wilson  V.  Bank,  187  111.  222,  58  N.  E.  250 36,  39,  243 


TABLE  OF  CASES  CITED.  327 

References  are  to  pages. 

Wilson  V.  Board  of  Education,  63  Mo.  137 255 

Wilson  V.  Brett,  11  M.  &  W.  113 233 

Wilson  V.  Dame,  58  N.  H.  392 90,  247 

Wilson  V.  Harris,  21  Mont.  374,  54  Pac.  46 108 

Wilson  V.  Mene-Chas,  40  Kan.  648,  20  Pac.  468 4 

Wilson  V.  Russ,    20    Me.    421 232 

Wilson  V.  Smith,   3   How.    (U.    S.)    763 36 

Wilson  V.  Wilson,   26   Pa.    St.   393 226,  227 

Wilson  V.  Wilson-Rogers,  181  Pa.  St.  80,  37  Atl.  117 123 

Wilson  Sewing  Mach.  Co.  v.  Sloan,  50  Iowa  367 178 

Wilts  V.  Morrall,  66  Barb.  (N.  Y.)  511 227 

Winchester  v.  Howard,  97  Mass.  303,  93  Am.  Dec.  93 197 

Winders  v.  Hill,  141  N.  C.  694,  54  S.  E.  440 148 

Wing  V.  Netl  (Me.)  2  Atl.  881 156 

Winne  v.  Ins.  Co.,  91  N.  Y.  185 123 

Winshop  V.  Bank  of  U.  S.,  5  Pet.   (U.  S.)  529 , 8 

Winship  V.  Baseball   Assn.,   78    Me.    571 254 

Winter  v.  Coit,  7  N.  Y.  288,  57  Am.  Dec.  522 259 

Wishard  v.  McNeill,  85  Iowa  474,  52  N.  W.  474 149 

Witherell  v.  Murphy,  147  Mass.  417,  18  N.  E.  215 252 

Witman  v.  Felton,  28  Mo.  601 238 

Wolf  V.    Studebaker,    65   Pa.    St.   459 251 

Wolfe  V.   Pugh,    101   Ind.   293 191 

Wolfson  V.  Allen  Bros.  Co.,  120  Iowa  445,  94  N.  W.  910 249 

Wood   V.   Brewer,    66   Ala.    570 56,  246 

Wood  V.  Goodridge,  6  Cush.    (Mass.)    117,  52  Am.  Dec.  771 

121,   127,  148 

Wood  V.  Hart,   50  Neb.   497,  70  N.  W.   53 101 

Wood  V.  McCain,  7  Ala.   800,  42  Am.  Dec.   612 5,  88 

Wood  V.  Palmer,  151  Mich.  30,  115  N.  W.  242 85 

Wood  etc.  Mach.  Co.  v.  Crow,  70  Iowa  340,  30  N.  W.  609 134 

Woodford  v.  Hamilton,  139  Ind.  481,  39  N.  E.  47 172 

Woodman  v.  Innes,  47  Kan.   26,   27  Pac.  125 45 

Woodruff  V.  Wentworth,   133   Mass.  309 47 

Worrall  v.  Munn,  5  N.  Y.  229,  55  Am.  Dec.  330 52,  78,  125 

Wright  V.  Boyton,  37  N.  H.  9,  72  Am.  Dec.  319 32 

Wright  V.  Farmers'  Mut.  Life  Ins.  Assn.,  96  Iowa  260,  65 

N.    W.    308 , 79 

Wright  V.  Solomon,  19  Col.  64,  79  Am.  Dec.  196 155 

Wright  V.  Parks,   10    Iowa   342 157 

Wunderlin  v.  Cadogan,  50  Cal.  613 53 


328  TABLE  OP  CASES  CITED. 

References  are  to  pages. 

W.  W.  Gordon  &  Co.  v.  Cobb,  4  Ga.  App.  49,  60  S.  E.  821....  230 
Wycofl,  Seaman  &  Benedict  v.  Davis,  127  Iowa  399,  103  N. 

W.  349 74 

Wyman  v.  Smith,  2  Sandf.  (N.  Y.)  331 219 

Wyman  v.  Snyder,  112  lU.  99,  1  N.  E.  469 37 

X 

Xenia  Bank  v.  Stewart,  114  U.  S.  224 181 

Y 

Yerrington  ▼.  Green,  7  R.  I.  589,  84  Am.  Dec.  578 253 

Yeoman  v.  McClenaban,  190  N.  Y.  121,  82  N.  E.  1086 190 

Yerger  v.  Barz,  56  Iowa  77,  8  N.  W.  769 186 

York  County  Bank  v.  Stein,   24  Md.  446 175 

Young  V.  Hughes,  32  N.  J.  Eq.  372 24 

Z 

Zacharle  T.  Godfrey,  50  111.  186,  99  Am.  Dec.  506 18 

Zimpleman  v.  Keating,  72  Tex.  318,  12  S.  W.  177 78 

Zuck  V.  Gulp,  59  Gal.  142 241 


INDEX 

(References  are   to  sections.) 

A. 
ACJCEPTANCE, 

of  appointment  by  agent,  52. 

of  services,  implies  promise  to  remunerate,  154. 

ACCOUNT, 

duty  of  agent  to,  151. 

ACTS, 

appointment  to  do  Illegal,  39. 

what  acts  can  not  be  delegated,  30,  31. 

what  acts  can  be  ratified,  54. 

see  "Delegation  of  AuTHOEriT;"  "Dxegai-ity  of  Object;' 
"Ratification." 

ADMISSIONS, 
defined,  112. 

by  agent,  good  against  principal,  113. 
authorized  statements,  113   (b). 
statements  part  of  transaction,  113  (c), 
res  gestae,  114. 

see  "Declarations." 

ADVERSE   INTEREST, 

disqualifies  to  act  as  agent,  25. 
agent  may  not  acquire,  150  (c), 

AGENCY, 

defined,  1. 

form  of  contract  of,  2. 

created  by  law,  3. 

legal  recognition  of  familiar  forms,  11. 

undisclosed  agency,  109. 

see    "Peoof    of    AtrrHOErrz;"    "PuiTiCTjr.AB    Aqewcies;' 
"Termination  of  Agency." 


830  INDEX. 

(References  are  to  sections.) 

AGENT, 

defined,  1. 

as  used  in  statutory  enactments,  4. 

distinguished  from  servant,  4. 

acts  tliat  can  be  done  by,  29. 

capacity  to  be,  22. 

appointment  of,  see  "Appointment  of  Agent." 

declarations  of,  see  "Declarations." 

apparent  authority  of  general  and  special,  92. 

classification  of,  5. 

universal,  general,  special,  6. 

del  credere,  7. 

particular  designations,  8. 

(a)  attorney. 

(b)  broker. 

(c)  factor 

(d)  auctioneer. 

legal  recognition  of  particular  classes,  11. 

to  sell,  96. 

to  puichase,  97. 

to  receive  payment,  98. 

to  execute  commercial  paper,  99. 

to  manage  business,  100. 

joint  agents,  27. 

unlicensed  agents,  26. 

liability  of,  on  contract  to  third  person,  132. 

simple  contract,  133. 

sealed  instrument,  134. 

negotiable  instrument,  135. 
liability  of,  when  acting  without  authority,  137. 
liability  of,  for  torts,  140. 
principal's  liability  for  torts  of,  119,  120. 
liability  of,  for  money  received, 

from  third  person  for  principal,  138. 

from  principal  for  third  person,  139. 
•wrongful  transfer  of  property  by,  128. 

where  invested  with  indicia  of  title,  128    (b)^ 

money  and  negotiable  paper,  128  (c). 
following  trust  funds  in  hands  of,  129. 
obligations  of,  to  princiijal,  146. 


INDEX.  331 

(References  are    to   sections.) 

AGENT  (continued)  — 

duty  of,  to  obey  instructions,  147. 

justification  for  disobedience  of  instructions,  148. 

emergency,  148    (a). 

illegal  acts,  148   (b). 

ambiguous  instructions,  148   (c). 

factor's  rights,  148    (d). 
duty  of,  to  exercise  care  and  diligence,  149. 

gratuitous  agent,  149   (b). 
duty  of,  to  act  in  good  faith,  150. 

acting  as  agent  and  party,  150  (b). 

acquiring  adverse  interest,  150   (c). 

may  not  deny  title,  150   (d). 

may  not  make  profit,  150   (e). 
duty  of,  to  account,  151. 

necessity  of  demand,  151   (c). 
liability  of,  for  acts  of  subagent,  152. 

see    "Principax;  "    "Appointment   of   Agent;"   "Authob- 
ity;  "  "Parties  to  Contract." 

ALIEN, 

capacity  to  be  principal,  19. 

APPOINTMENT  OF  AGENT, 
in  general,  45. 

to  execute  sealed  instrument,  46. 
to  fill  blanks  in  sealed  instruments,  47. 
to  execute  simple  contracts  required  to  be  in  writing,  48. 
oral  appointment,  49. 
Implied  appointment,  50. 

implication  from  circumstances,  50  (b). 
from  acts  or  conduct,  50   (c). 
from  relation  of  parties,  50  (d). 
estoppel  to  deny,  51. 
acceptance  of,  by  agent,  52. 

see  "Acts;  "  "Proof  of  Authority." 

ATTORNEY, 
defined,  8. 

attorney  at  law,  implied  authority  of,  105. 
see  "Power  of  Attorney. 


332  INDEX. 

(References  are  to  eectloni.) 

AUCTIONEER, 

defined,  8. 

implied  auttiority  of,  104. 

AUTHORITY, 

establishment  of,  see  "Proof  of  Authoritt." 
construction  of,  see  "Construction  of  Authority." 
ambiguous,  81. 

must  be  exercised  for  principal's  benefit,  82. 
effect  of  exceeding,  84,  137. 

where  transaction  is  severable,  84. 
slight  deviations  from,  83. 
transfer  of  property  without,  128. 
acting  without,  effect  on  agent,  137. 
implied,  50,  88. 

Implication  as  to  extent  of,  89. 
apparent,  91. 
irrevocable,  70,  73. 
estoppel  to  deny,  51. 

scope  of,  in  particular  agencies,  see  "Pakticui.ab  Agencies.' 
revocation  of,  see  "Termination  of  Agenct." 
warranty  of,  by  agent,  137   (c). 

see  "Appointment  of  Agent;"   "Powees." 

B. 

BANKRUPTCY, 

termination  of  agency  by,  75. 

BROKER, 

defined,  8. 

scope  of  authority  of,  103. 

powers  of,  implied  from  usage,  89. 

a 

CAPACITY, 

to  be  principal  or  a^ent,  see  "Pabties." 

CARE  AND  DILIGENCE, 

duty  of  agent  to  exercise,  149. 
see  "Agent." 


INDEX.  33  i> 

(References  are   to   sections.) 

CASHIER, 

implied  authority  of,  101. 
contract  signed  by,  108  (c). 

COLLUSION, 

of  third  person  and  agent,  130  (b). 

COMPENSATION, 

agent's  right  to,  154. 
amount  of,  154   (c). 
when  due,  155. 

effect  upon,  of  revocation  of  authority,  156. 
of  renunciation  of  agency,  157. 

CONSTRUCTION  OF  AUTHORITY, 
in  general,  86. 
express  authority,  87. 
implied  authority,  88. 
implication  as  to  extent  of  authority,  89. 

incidental  powers,  89   (a). 

powers  implied  from  usage,  89    (b). 
effect  of  express  restrictions,  90. 
apparent  authority,  scope  of,  91. 

of  general  and  special  agents,  92. 

notice  of  limitations  upon,  93. 

see  "Peoof  of  Authority;"  "Wbittbn  Authority." 

CONTRACT, 

form  of  contract  of  agency,  2. 

effect  of  illegality  of  object  upon,  38. 
appointment  to  execute  sealed,  46. 
appointment  to  execute  written,  48. 
ratification  of  unauthorized,  54. 

mode  of  ratification,  57. 
when  revocation  of  authority  involves  breach  of,  68. 
persons  bound  by,  see  "Parties  to  Conteact." 

CORPORATIONS, 

capacity  of,  to  be  agent,  24. 
promoter's  contract  in  behalf  of,  55. 

COURT  AND  JURY, 
province  of,  79   (e). 

see  "Proof  of  Authority." 


334:  ESTDEX. 

(References  are  to  sections.) 

CRIMES, 

can  not  be  ratified,  54   (c). 

liability  of  principal  for  crimes  of  agent,  121. 

prior  assent  necessary,  122. 

statutory  offenses,   122    (b). 

CUSTOM  AND  USAGE, 

implication  of  authority  from,  89    (b). 

justifying  appointment  of  subagent,  36. 
see  "Construction  of  Authobitt." 

D. 

DEATH, 

termination  of  agency  by,  73. 
powers  not  revoked  by,  73   (c). 

DECEIT, 

of  agent  in  claiming  to  have  authority,  137. 
see  "Fraud." 

DECLARATIONS, 

of  agent,  incompetent  to  prove  agency,  79. 
admissible  as  admissions,  113. 
see  "Admissions." 

DEFENSES, 

against  disclosed  principal,  123. 
against  undisclosed  principal,  126. 
against  agent,  142. 
see  "Parties  to  Contract." 

DELEGATION  OF  AUTHORITY, 
in  general,  29. 

personal  acts  can  not  be  delegated,  30. 
acts  required  by  statute  to  be  personally  performed,  31. 
delegated  authority  can  not  be  delegated,  32. 
see   "Subagent." 

DEMAND, 

necessity  of,  by  principal  upon  agent,  151   (c). 

DRUNKEN  PERSON, 

ca[)acity  to  l)o  principal,  18. 


INDEX.  835 

(References  are   to   sections.) 

E. 
ELECTION, 

to  hold  undisclosed  principal,  109   (b). 
to  hold  agent,  133. 

ESTOPPEL, 

agency  by,  51. 
establishment  of,  79  (d). 
to  set  up  revocation,  69    (b). 
to  deny  authority  to  sell,  128. 

EVIDENCE, 

of  authority,  see  "Proof  of  Authority." 
parol,  inadmissible  to  vary  written  powers,  80. 
parol,  inadmissible  to  charge  parties  by  sealed  or  negotiable 
instruments,  107,  108. 
exception  as  to  negotiable  instruments,  108    (b). 
parol,  admissible  to  charge  undisclosed  principal,  109. 
parol,  inadmissible  to  defeat  agent's  liability,  133. 

EXECUTION  OF  INSTRUMENTS, 

form  of,  necessary  to  bind  principal,  107,  108. 
see  "Parties  to  Contract." 

F. 
FACTOR, 

defined,  8. 

scope  of  authority  of,  102. 

lien  of,  160. 

FALSE  REPRESENTATIONS, 

effect  of  agent's,  upon  contract,  120. 
see  "Fraud." 

FORGERY, 

ratification  of,  54  (d). 

FRAUD, 

of  agent,  principal  liable,  120. 

where  not  for  principal's  benefit,  120   (b). 
of  third  person,  liability  to  principal,  130. 
of  agent,  upon  principal,  150. 

see  "Deceit." 


336  INDEX. 

(References  are   to   sections.) 

G. 

GENERAL  AGENT, 
defined,  6. 
apparent  authority  of,  92. 

GOOD  FAITH, 

duty  of  agent  to  exercise,  150. 

GRATUITOUS  AGENT, 

obligations  of,  to  principal,  149   (b). 

H. 

HUSBAND  AND  WIFE, 

existence  of  relation  does  not,  of  itself,  Imply  authority  In 
one  to  represent  the  other,  50    (d). 
see  "Relationship  of  Parties." 

I. 

ILLEGALITY  OF  PURPOSE, 

justification  for  disobedience  of  instructions,  148    (b). 
effect  of,  upon  contract  of  agency,  38. 

conditions  necessary   to  invalidate  contract,  44. 
appointment  to  do  illegal  acts,  39. 

services  in  influencing  legislation,  40. 

services  in  procuring  other  governmental  action,  41. 

services  affecting  the  public,  42. 

services  contrary  to  fair  dealings,  43. 
effect  of,  upon  agent's  right  to  indemnity,  159  (b). 

INDEMNIFICATION, 

duty  of  principal  to  indemnify  agent,  159. 
see  "Pbincipal." 

INDICIA  OF  OWNERSHIP, 

effect  of  intrusting  agent  with,  12S  (b). 

INFANT, 

capacity  of,  to  be  principal,  21. 
to  be  agent,  23. 
to  ratify.  50. 


INDEX.  337 


(References  are   to   sections.) 


INSANE  PERSON, 

capacity  of,  to  be  principal,  17. 
to  be  agent,  23. 
to  ratify,  56. 

INSANITY, 

termination  of  agency  by,  74. 

INSTRUCTIONS, 

duty  of  agent  to  obey,  147. 
see    "Agent." 

IRREVOCABLE  AUTHORITY, 

see  "Tebmixation  of  Agency." 


JOINT  AGENTS. 

all  must  act  in  execution  of  agency,  27. 
incapacity  of  one  terminates  the  agency,  27. 
public  agency,  28. 

JOINT  PRINCIPALS, 
in  general,  13. 
partnerships,  14. 
voluntary  associations,  15. 

K. 

KNOWLEDGE, 

of  material  facts,  necessary  to  ratification,  60. 
of  limitations  upon  authority  of  agent,  93. 
see  "Notice." 

L. 

LIABILITY, 

see  "Principal;"   "Agent;"    "Third   Persons;**   "Pabties  to 
Contract." 

LIEN, 

of  agent,  160. 
general  lien,  160. 
special  lien,  161. 
requisites  of,  161   (b). 
enforcement  of,  161   (c). 


333  INDEX. 

,    (References  are   to   sections.) 

LIMITATIONS, 

knowledge  of,  upon  authority  of  agent,  91. 

LOSS  OF  SERVICES, 

liability  to  principal  for  causing,  131. 

M. 

MARRIAGE, 

revocation  of  power  of  attorney  by,  76. 
see  "Tek.mixation  of  Agency," 

MARRIED  WOMAN, 

capacity  to  be  principal,  20. 
to  be  agent,  23. 
to  ratify,  56. 

MASTER  AND  SERVANT, 

relation,  distinguished  from  that  of  principal  and  agent,  4. 

liability  of  master  for  torts  of  servant,  118. 
liability  of  principal  analogous,  119. 

MINISTERIAL  ACTS, 

implied  authority  to  delegate,  35. 

see    "SUCAGENT." 

MISTAKE  OF  FACT, 

payment  to  agent  under,  138. 

payment  by  agent  under,  144,  127. 

acting  under,  as  to  possession  of  authority,  137. 

MONEY, 

wrongfully  paid  by  agent,  128    (c). 

N. 

NECESSITY, 

agency  of,  50   (b). 

justification   lor  deviation  from  instructions,  148. 

NEGLIGENCE, 

liability  of  agent   lor,  to  primiijal,  149. 
to  third   person.  110. 


INDEX.  339 


(References   are    to    sections.) 

NEGOTIABLE   INSTRUMENTS, 
power  of  agent  to  issue,  99. 
unnamed  principal  not  liable  on,  108. 

parol  evidence  to  charge,  108    (b). 
liability  of  agent  upon,  135. 
wrongful  transfer  of,  by  agent,  128    (c). 

NOTICE, 

of  limitations  on  authority  of  agent,  93. 
notice  to  agent  imputed  to  principal,  116. 

when  not  imputed,  116   (b). 
duty  of  agent  to  give,  to  principal,  150  (f), 

O. 
OBLIGATIONS, 

of  principal   to  agent,  see  "Pbincip-Vl/' 
of  agent  to  principal,  see  "Agent." 

P. 

PARTICULAR  AGENCIES, 
agent  to  sell,  96. 
agent  to  purchase,  97. 
agent  to  collect,  98. 
agent  to  execute  commercial  paper,  99. 
agent  to  manage  business,  100. 
bank  cashier,  101. 
factor,  102. 
broker,  103. 
auctioneer,  104. 
attorney  at  law,  105. 

PARTIES, 

capacity  to  be  principal,  12 

insane  person,  17. 

drunken  person,  18. 

alien,  19. 

married  woman,  20. 

infant,  21. 
capacity  to  be  agent,  22, 

infant,  23. 

insane  person,  23. 


340  INDEX. 

(References   are   to   sections.) 

PARTIES   (continued)  — 

married  woman,  23. 

corporation,   24. 

partnership,  24. 

persons  adversely  interested,  25. 

unlicensed  agent,  26. 

PARTIES  TO  CONTRACT, 

when  principal  is  deemed  bound,  106. 
by  sealed   instrument,  107, 
by  negotiable  instrument,  108. 

parol  evidence  rule,  108   (b). 
by  simple  non-negotiable  contract,  109. 
undisclosed  principal,  109    (a), 
election  to  hold  principal,  109    (b). 
effect  of  settlement  with  agent,  109   (c). 
•when  third  person  bound  to  principal,  123. 
by  sealed  instrument,  124. 
by  negotiable  Instrument,  124. 
by  simple  non-negotiable  contract,  125. 
to  undisclosed  principal,  125   (a), 
principal  excluded  by  terms  of  contract,  125  (b). 
defenses    good    against    principal,    126. 
when  third  person  bound  to  agent,  141. 
defenses  good  against  agent,  142. 
professed   agent   real    principal,   143. 
when  agent  bound  to  third  person,  132. 
simple  non-negotiable  contract,  133. 
sealed  instrument,  134. 
negotiable  instrument,  135. 
acting  without  authority,  137. 
public  officers,  136. 

PARTNERS, 

each  agent  of  all,  9. 

power  of  eacli  to  appoint  agent  for  all,  14. 

PARTNERSHIP, 

may  act  as  agent,  24. 

PAYMENT, 

authority  of  agent  to  receive,  98. 

of  money,  l)y  agent  tlirough  mistake,  127. 

of  iiioncy,  by  third  pfMSon  to  agent,  138. 


INDEX.  341 

(References  are   to   sections.) 

PLEDGE, 

agent  to  sell  not  authorized  to,  96, 

POSSESSION, 

intrusting  agent  with,  126  (b),  128. 

POWERS, 

irrevocable,  70. 

power  coupled  with  an  interest,  73  (c). 
formal,  strictly  construed,  80. 
implied  from  usage,  89   (b). 
incidental,  89  (a). 

see  "Authority;"  "Construction  of  Authobit 

POWER  OP  ATTORNEY, 
defined,  8. 
construction  of,  see  "Written  Authority." 

PRINCIPAL, 

capacity  to  be,  12. 

when  bound  by  contract,  see  "Parties  to  Contract." 

revocation  of  authority  by,  see  "Termination  of  Agenot." 

joint  principals,  13. 

bound  by  ratification,  63. 

notice  to  agent  imputed  to,  116. 

declarations  of  agent,  when  admissible  against,  113. 

estoppel  of,  to  deny  agent's  authority,  51. 

liability  of,  for  crimes  of  agent,  122. 

liability  of,  for  tort  of  agent,  119. 

liability  of  third  person  to,  see  "Third  Person.", 

undisclosed  principal,  109. 

liability  of  third  person,  to,  125. 

defenses   good   against,  126. 
obligation  of,  to  agent,  in  general,  153. 
obligation   to  compensate  agent,  154. 

effect  of  ratification  upon,  154   (b). 

amount  of  compensation,  154    (c). 

when  compensation  is  due,  155. 

revocation  of  authority,  156. 

In  violation  of  contract,  156    (b). 
for  agent's  misconduct,  156    (c). 
revocation  by  law,  156   (d). 

renunciation  by  agent,  157. 

entire  and  severable  contracts,  157   (b). 


342  INDEX. 

(References  are  to   sections.) 

PRINCIPAL   (continued)  — 

obligation  to  reimburse  agent,  158. 
obligation  to  indemnify  agent,  159. 

illegal  acts,  159   (b). 
obligations  of  agent  to,  see  "Agent." 

PRIVITY  OF  CONTRACT, 

between  principal  and  subagent,  37,  152. 

PROFIT, 

agent  may  not  make  secret,  150  (e). 

PROOF  OF  AUTHORITY, 

burden  on  third  person  to  establish,  authority,  78. 
agent's  declarations  incompetent  to  prove  authority,  79. 

when  competent,  79. 
agent  may  testify,  79. 
declarations  of  principal  competent,  79  (b), 

communications  between  principal  and  agent,  79  (b), 
written  authority,  80. 
oral   authority,  79    (c). 
implied  authority,  79    (c). 

establishment  of  ratification  and  estoppel,  79  (d). 
province  of  court  and  jury,  79   (e). 
public  ofBcers,  85. 

PUBLIC  OFFICERS, 
authority  of,  85. 
contracts  executed  by,  136. 

PURCHASE, 

agent  to,  implied  authority  of,  97. 
see  "Particular  Agencies." 


R. 

RATIFICATION, 

the  doctrine  of,  53. 

acts  and  contiacts  that  can  be  ratifiea,  ot. 

forgery,  54   (d). 

torts,  54    (c). 

rrimes,  54  (c). 

who  may  ratify,  56. 


INDEX.  343 

(References  are   to   sections.) 

RATIFICATION   (continued)  — 
conditions  to  ratification,  55. 

assumption  of  agency,  55  (a). 

existence  of  principal,  55   (b).  . 
mode  of  ratification,  57. 

sealed  instruments,  57  (b). 
Implied  ratification,  58. 

affirmative  act,  58   (a). 

silence,  58    (b). 
must  be  with  knowledge  of  facts,  60. 
estoppel,    59. 
ratification  in  part,  61. 
effect  of  ratification,  62. 

between  principal  and  third  person,  63. 

intervening  rights  of  strangers,  62    (b). 

between  principal  and  agent,  64,  154    (b). 
proof  of,  79   (d). 

REIMBURSEMENT, 

duty  of  principal  to  reimburse  agent,  158. 
RELATIONSHIP  OF  PARTIES, 

does  not  raise   implication  of  authority,  50    (d). 

may  be  considered  by  the  jury,  79  (c),  50  (d). 

effect  on  obligation  to  remunerate,  154. 

REMUNERATION, 

duty  of  principal  to  remunerate  agent,  154. 
see  "Principal." 

RENUNCIATION, 

termination  of  agency  by,  71. 

effect  upon  agent's  right  to  remuneration,  157. 

REPRESENTATIONS, 

liability  of  principal  for  agent's,  120. 

REVOCATION  OF  AUTHORITY, 

effect  of,  upon  agent's  right  to  remuneration,  156. 
see  "Termination  of  Agency." 

S 

SEALED  INSTRUMENTS, 

appointment  to  execute,  46. 
to  fill  blanks,  47 


344  INDEX. 

(References   are    to    sections.) 

SEALED  INSTRUMENTS    (continued)  — 
ratification  of,  57. 

construction  of  powers  given  under  seal,  80,  81. 
form  of  execution  of,  necessary  to  bind  principal,  107. 
agent  bound  by,  134. 

parol   evidence    inadmissible   to   bind   principal    by,   107. 
see  "Parties  to  Contract." 

SELL, 

agent  to,   implied  powers  of,  96. 

SERVANT, 

distinguished  from  agent,  4. 
liability  of  master  for  torts  of,  118. 

SERVICES, 

illegal,  see  "Illegality." 

liability  for  causing  loss  of,  131. 
SET-OFF, 

against  agent  good  against  undisclosed  principal,  126. 

against  principal  good  in  suit  by  agent,  142. 

by  agent  against  principal,  151    (b). 

SETTLEMENT, 

with  agent  of  undisclosed  principal,  126. 

by  undisclosed  principal  with  agent,  109   (c). 

SKILL, 

duty  of  agent  to  exercise,  149. 

STOPPAGE  IN  TRANSITU, 
agent's  right  of,  162. 

SUBAGENT, 

appointment  of,  33. 

impliPd  authority  of  agent  to  appoint,  34. 

implication  from  nature  of  agency,  36. 

ministerial  acts,  35. 
relation  between  principal  and  subagent,  37. 
resjionsibility  of  agent  for  conduct  of,  152. 


T. 


TERMINATION  OF  AGENCY, 
Jn  general,  65. 
by  oriplnal  agreement,  66. 


INDEX.  345 

(References  are  to   sections.) 

TERMINATION  OF  AGENCY    (continued)— 

by  implication,  66. 
revocation   of  authority,   68. 
how  revocation  is  effected,  69. 

notice  to  agent,  69   (a). 

notice  to  third  persons,  69   (b). 
revocation  in  violation  of  contract,  68    (b), 
irrevocable  authority,  70. 

authority  given  for  valuable  consideration,  70. 

authority  coupled  with  an  interest,  73  (c). 
renunciation  by  agent,  71. 
by  operation  of  law,  72. 

death,  73. 

powers  not  revoked  by  death,  73   (c). 

insanity,  74. 

bankruptcy,  75 

marriage,  76. 

war,  77. 

THIRD    PERSON, 

burden   upon,  to  establish  existence  of  agent's  authority,  78. 
liability  of,  to  principal,  123. 

sealed  and  negotiable  instruments,  124. 
liability  of,  to  undisclosed  principal,  125. 

settlement  with  agent  before  disclosure,  126. 

principal  excluded  by  terms  of  contract,  125    (b). 

defenses,  126. 
liability  of,  to  principal  for  property  wrongfully  transferred 
128. 

where  agent  invested  with  indicia  of  ownershp,  128  (b). 

money  and  negotiable  instruments,   128    (c) 
following  trust  funds  in  hands  of,  129 
fraud  of,  130. 

collusion  of,  with  agent,  130  (b). 
causing  loss  of  agent's  service,  131. 
liability  of,  to  agent,  141. 

on  contract,  141    (a). 

where  agent  has  inteiest  in  subject  matter,  141  (b). 

defenses,  142. 

for  money   paid  by   agent,   144. 


346  ^^''^^' 

(References   are   to    sections.) 

THIRD  PERSON    (continued)  — 
for  torts,  145. 

professed  agent  real  principal,  143. 
see  "Pbixcipax;"    "Agent." 

TITLE, 

agent  to  purchase  may  not  acquire,  150  (c). 
agent  may  not  deny  principal's,  150    (d). 

TORT, 

of  agent,  may  be  ratified,  54   (c). 
liability  of  principal  for  tort  of  agent,  119. 
liability  of  agent  for,  140. 
nonfeasance,   140    (b). 
liability  of  third  person  for,  130,  145. 

TRUST  FUNDS, 

following,  into  hands  of  agent,  129, 
into  hands  of  third  person,  129. 

U. 

UNDISCLOSED  PRINCIPAL, 

liability  of,  to  third  person,  109. 

election  of  third  person  to  hold,  109   (b), 
settlement  by,  with  agent,  109   (c). 
liability  of  third  person  to,  125. 
defenses,  126. 

see  "Parties  to  Contract.* 

UNIVERSAL  AGENT, 
defined,  6. 

USAGE, 

see  "Clstom  and  Usage." 

V. 

VOLUNTARY  ASSOCIATION, 

when  members  bound  by  act  of  agent,  15. 

W. 

WAR, 

ternilnaUnn  of  aponcy  by,  77. 


INDEX.  347 

(References   are   to    sections.) 

WARRANTY, 

implied  power  of  agent  to  give,  89  (b). 

of  particular  agents,  see  "Particulab  Agencies." 
of  authority,  by  agent,  137    (c). 

damages  for  breach,  137  (d). 

WIFE, 

implied  authority  of,  to  act  as  agent  for  husband,  50  (d). 
see  "Relationship  of  Parties." 

WRITTEN  AUTHORITY, 

when  necessary,  46,  48. 

proof  of,  80. 

formal  powers  strictly  construed,  87,  80. 

can  not  be  varied  by  parol,  80. 
informal  powers,  80. 


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